Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 6 contracts

Samples: Auction Agent Agreement (Muniyield Insured Fund Inc), Auction Agent Agreement (Munivest Fund Inc), Auction Agent Agreement (Munienhanced Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. In the case of any conflict between the terms of any document incorporated herein by reference and the terms hereof, the Auction Agent shall not be liable for its actions or inaction in accordance with the terms of this Agreement. (c) The current Applicable Percentage is 150%. In the event that the credit rating of the Preferred Shares changes in a way that results in a change in the Applicable Percentage, the Fund shall send prompt notice of such change to the Auction Agent. In the absence of its actual receipt of any such notice, the Auction Agent is authorized to apply, and shall be fully protected in applying, the Applicable Percentage last communicated to it by the Fund in a notice or set forth above in this paragraph. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If any "AA" Financial Composite Commercial Paper Rate, Treasury Index Rate, Treasury Note Rate or Reference Rate, as the ~~rate obtained by the Auction Agent~~ case may be, is not quoted on an interest ~~or discount~~ equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any "AA" Financial Composite Commercial Paper Rate ~~is the applicable LIBOR Rate and such rate~~ is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such "AA" Financial Composite Commercial Paper Rate, the Auction Agent shall promptly ~~shall~~ notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) ~~If, after the date of this Agreement, there~~ If any Treasury Index Rate or Treasury Note Rate is ~~any change in the prevailing rating of AMPS~~ to be based on rates supplied by ~~either~~ U.S. Government Securities Dealers and one or more of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread U.S. Government Securities Dealers shall not provide a quotation for the ~~AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing~~ determination of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemedTreasury Rate, the Auction Agent shall ~~request each Agent Member~~ promptly notify the Fund so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the ~~Auction Agent has been furnished with the name and telephone number of~~ Fund can determine whether to select a ~~person~~ substitute U.S. Government Securities Dealer or ~~department at such Agent Member from which it is~~ substitute U.S. Government Securities Dealers to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the ~~Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of~~ quotation or quotations not being supplied by any ~~series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-~~U.S. Government Securities Dealer ~~and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction~~ or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.U.S.

Appears in 5 contracts

Samples: Auction Agency Agreement (Neuberger Berman Real Estate Securities Income Fund Inc), Auction Agency Agreement (Neuberger Berman Realty Income Fund Inc), Auction Agency Agreement (Neuberger Berman Income Opportunity Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage or Spread for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to conclusively rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares ~~of each series~~ of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of~~ AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption ~~of any series~~ of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such series of~~ AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares ~~of such series~~ of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such series of~~ AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares ~~of a series~~ of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of~~ AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 5 contracts

Samples: Auction Agent Agreement (Muniyield Arizona Fund Inc /Nj/), Auction Agent Agreement (Muniholdings Fund Inc), Auction Agent Agreement (Muniyield Quality Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the ~~Broker-~~Broker- Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (id) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company Except as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iiotherwise provided in paragraph 2(f) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, ~~thereby resulting~~ whenever the Company intends to include any net capital gains or other income subject to regular Federal income tax in any ~~change in the corresponding applicable percentage or corresponding applicable spread for the~~ dividend on shares of AMPS~~, as set forth in said definition (the "Percentage or Spread")~~, the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to will notify the Auction Agent of the ~~identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member~~ amount to ~~contact regarding such redemption, and~~ be so included at least ~~two~~ five Business Days prior to the Auction ~~preceding~~ Date on which the ~~date of redemption with respect~~ Applicable Rate for such dividend is to ~~shares of such series of AMPS being partially redeemed,~~ be established. Whenever the Auction Agent ~~shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by~~ receives such ~~Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by~~ notice from the Company, ~~provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which~~ in turn it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the will notify each Broker-~~Dealer Agreements~~Dealer, by who, on or prior to such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date~~. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing~~, in ~~a notice substantially in the form of Exhibit D to the~~ accordance with its Broker-Dealer Agreement, by will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Company includes any additional amounts in a dividend as provided in paragraph 2(f) of the Articles Supplementary, the Company will notify the Auction Agent ~~Member~~ of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Company, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such sharesAgreement, will notify its Beneficial Owners. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 4 contracts

Samples: Auction Agent Agreement (Muniholdings New York Insured Fund Iii Inc), Auction Agent Agreement (Muniholdings California Insured Fund Iii Inc), Auction Agent Agreement (Muniholdings Michigan Insured Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (c) The Applicable Percentage and the Applicable Spread on the date of the Agreement are those rates as determined by the Fund and provided to the Auction Agent on the date even herewith. If there is any change in the credit rating of AMPS by the rating agency (or substitute or successor rating agencies) referred to in the definition of "Applicable Percentage" and "Applicable Spread" resulting in any change in the Applicable Percentage or Applicable Spread for AMPS after the date given herewith, the Fund shall notify the Auction Agent in writing of such change in the Applicable Percentage or Applicable Spread prior to 12:00 Noon on the Business Day prior to the next Auction Date for any series of AMPS succeeding such change. In determining the Maximum Rate for any series of AMPS on any Auction Date as set forth in 2.5(a)(i) hereof, the Auction Agent shall be entitled to rely on the last Applicable Percentage and Applicable Spread for AMPS of which it has most recently received notice from the Fund (or, in the absence of such notice, the percentage or spread determined by reference to the definition of Applicable Percentage and Applicable Spread, respectively). (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If ~~the rate obtained by the Auction Agent~~ any Treasury Index Rate is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any LIBOR Rate is to be determined by reference to Moneyline's Telerate Page 3750 or by rate quotations provided by LIBOR Dealer(s), as the ~~applicable~~ case may be, and Moneyline's Telerate Page 3750 is unavailable or the LIBOR ~~Rate and~~ Dealer(s) fail to provide rate quotations, as the case may be (as described in the Articles Supplementary), then the Auction Agent shall immediately notify the Fund so that the Fund can determine whether to select a Substitute LIBOR Dealer(s) to provide such rate quotation(s) not being supplied. (iii) If any Treasury Index Rate is to be based on rates supplied by ~~LIBOR~~ U.S. Government Securities Dealers and one or more of the ~~LIBOR~~ U.S. Government Securities Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such Treasury Index Rate, the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealer or ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ U.S. Government Securities Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.U.S.

Appears in 4 contracts

Samples: Auction Agency Agreement (Cohen & Steers Advantage Income Realty Fund Inc), Auction Agency Agreement (Cohen & Steers Quality Income Realty Fund Inc), Auction Agency Agreement (Cohen & Steers Select Utility Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. In the case of any conflict between the terms of any document incorporated herein by reference and the terms hereof, the Auction Agent shall not be liable for its actions or inaction in accordance with the terms of this Agreement. (c) The current Rate Multiple is %. In the event that the credit rating of the AMPS changes in a way that results in a change in the Rate Multiple, the Fund shall send prompt notice of such change to the Auction Agent. In the absence of its actual receipt of any such notice, the Auction Agent is authorized to apply, and shall be fully protected in applying, the Rate Multiple last communicated to it by the Fund in a notice or set forth above in this paragraph. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If any "AA" Composite Commercial Paper Rate, Treasury Xxxx Rate, Treasury Note Rate or Reference Rate, as the ~~rate obtained by the Auction Agent~~ case may be, is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 3 contracts

Samples: Auction Agency Agreement (Neuberger Berman Intermediate Municipal Fund Inc), Auction Agency Agreement (Neuberger Berman New York Intermediate Municipal Fund Inc), Auction Agency Agreement (Neuberger Berman California Intermediate Municipal Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the ~~notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures~~notice, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference~~ `AA' Financial Composite Commercial Paper Rate or the Treasury Index Rate, as the case may be, and the Maximum ~~Applicable~~ Rate. If the `AA' Financial Composite Commercial Paper Rate or the Treasury Index Rate, as the case may be, is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an `interest equivalent', or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Fund as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers of the ~~Reference~~ `AA' Financial Composite Commercial Paper Rate or the Treasury Index Rate, as the case may be, so determined and of the Maximum ~~Applicable~~ Rate. (ii) If the ~~Reference~~ `AA' Financial Composite Commercial Paper Rate ~~is the applicable LIBOR Rate and such rate~~ is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ `AA' Financial Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C B to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D C to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 3 contracts

Samples: Auction Agency Agreement (Scudder Rreef Real Estate Fund Inc), Auction Agency Agreement (Real Estate Income Fund Inc), Auction Agency Agreement (Scudder Rreef Real Estate Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If any "AA" Composite Commercial Paper Rate, Treasury Index Rate or Reference Rate, as the ~~rate obtained by the Auction Agent~~ case may be, is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any "AA" Composite Commercial Paper Rate ~~is the applicable LIBOR Rate and such rate~~ is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) ~~If, after the date of this Agreement, there~~ If any Treasury Index Rate or Treasury Xxxx Rate is ~~any change in the prevailing rating of AMPS~~ to be based on rates supplied by ~~either~~ U.S. Government Securities Dealers and one or more of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread U.S. Government Securities Dealers shall not provide a quotation for the ~~AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing~~ determination of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemedTreasury Index Rate, the Auction Agent shall ~~request each Agent Member~~ immediately notify the Fund so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the ~~Auction Agent has been furnished with the name and telephone number of~~ Fund can determine whether to select a ~~person~~ substitute U.S. Government Securities Dealer or ~~department at such Agent Member from which it is~~ substitute U.S. Government Securities Dealers to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the ~~Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of~~ quotation or quotations not being supplied by any ~~series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-~~U.S. Government Securities Dealer ~~and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction~~ or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.U.S.

Appears in 3 contracts

Samples: Auction Agency Agreement (Cohen & Steers Quality Income Realty Fund Inc), Auction Agency Agreement (Cohen & Steers Premium Income Realty Fund Inc), Auction Agency Agreement (Cohen & Steers Advantage Income Realty Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph 1 of the Articles Supplementary; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the Company shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 3 contracts

Samples: Auction Agent Agreement (Muni New York Intermediate Duration Fund Inc), Auction Agent Agreement (Muni Intermediate Duration Fund Inc), Auction Agent Agreement (Muni California Intermediate Duration Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 11.2 of the ~~Articles Supplementary~~ Amended and Restated Bylaws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers ~~of the Reference Rate so determined and~~ of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by ~~3:00 P.M. on~~ 12:00 noon of the ~~Business Day next preceding the applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 3 contracts

Samples: Auction Agency Agreement (Pimco Municipal Income Fund Iii), Auction Agency Agreement (Pimco New York Municipal Income Fund Iii), Auction Agency Agreement (Pimco California Municipal Income Fund Iii)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If ~~the rate obtained by the Auction Agent~~ any Treasury Index Rate is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any LIBOR Rate is to be determined by reference to Telerate Page 3750 or by rate quotations provided by LIBOR Dealer(s), as the ~~applicable~~ case may be, and Telerate Page 3750 is unavailable or the LIBOR ~~Rate and~~ Dealer(s) fail to provide rate quotations, as the case may be (as described in the Articles Supplementary), then the Auction Agent shall immediately notify the Fund so that the Fund can determine whether to select a Substitute LIBOR Dealer(s) to provide such rate quotation(s) not being supplied. (iii) If any Treasury Index Rate is to be based on rates supplied by ~~LIBOR~~ U.S. Government Securities Dealers and one or more of the ~~LIBOR~~ U.S. Government Securities Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such Treasury Index Rate, the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealer or ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ U.S. Government Securities Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.U.S.

Appears in 3 contracts

Samples: Auction Agency Agreement (Cohen & Steers Reit & Preferred Income Fund Inc), Auction Agency Agreement (Cohen & Steers Reit & Preferred Income Fund Inc), Auction Agency Agreement (Cohen & Steers Reit & Preferred Income Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in paragraph 2(f) of the Articles Supplementary, whenever the Company intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of AMPS, the Company will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Company, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Company includes any additional amounts in a dividend as provided in paragraph 2(f) of the Articles Supplementary, the Company will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Company, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Company makes a Retroactive Taxable Allocation, the Company, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the stock books of the Company. The Company, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph 1 of the Articles Supplementary; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the ~~Broker-~~Broker- Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the Company shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (fii) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of~~ AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 3 contracts

Samples: Auction Agent Agreement (Muniholdings Fund Ii Inc/Nj), Auction Agent Agreement (Muniholdings California Insured Fund Inc), Auction Agent Agreement (Muniholdings New York Fund Inc/Nj)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 11.2 of the ~~Articles Supplementary~~ Amended and Restated Bylaws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers ~~of the Reference Rate so determined and~~ of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by ~~3:00 P.M. on~~ 12:00 noon of the ~~Business Day next preceding the applicable Auction~~ Dividend Payment Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 3 contracts

Samples: Auction Agency Agreement (Pimco California Municipal Income Fund Ii), Auction Agency Agreement (Pimco New York Municipal Income Fund Ii), Auction Agency Agreement (Pimco Municipal Income Fund Ii)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to conclusively rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 2 contracts

Samples: Auction Agent Agreement (Munivest Fund Ii Inc), Auction Agent Agreement (Muniyield Michigan Insured Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (c) The Applicable Percentage and the Applicable Spread on the date of the Agreement are those rates as determined by the Fund and provided to the Auction Agent on the date even herewith. If there is any change in the credit rating of AMPS by the rating agency (or substitute or successor rating agencies) referred to in the definition of "Applicable Percentage" and "Applicable Spread" resulting in any change in the Applicable Percentage or Applicable Spread for AMPS after the date given herewith, the Fund shall notify the Auction Agent in writing of such change in the Applicable Percentage or Applicable Spread prior to 12:00 Noon on the Business Day prior to the next Auction Date for any series of AMPS succeeding such change. In determining the Maximum Rate for any series of AMPS on any Auction Date as set forth in 2.5(a)(i) hereof, the Auction Agent shall be entitled to rely on the last Applicable Percentage and Applicable Spread for AMPS of which it has most recently received notice from the Fund (or, in the absence of such notice, the percentage or spread determined by reference to the definition of Applicable Percentage and Applicable Spread, respectively). (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If ~~the rate obtained by the Auction Agent~~ any Treasury Index Rate is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any LIBOR Rate is to be determined by reference to Moneyline's Telerate Page 3750 or by rate quotations provided by LIBOR Dealer(s), as the ~~applicable~~ case may be, and Moneyline's Telerate Page 3750 is unavailable or the LIBOR ~~Rate and~~ Dealer(s) fail to provide rate quotations, as the case may be (as described in the Articles Supplementary), then the Auction Agent shall immediately notify the Fund so that the Fund can determine whether to select a Substitute LIBOR Dealer(s) to provide such rate quotation(s) not being supplied. (iii) If any Treasury Index Rate is to be based on rates supplied by ~~LIBOR~~ U.S. Government Securities Dealers and one or more of the ~~LIBOR~~ U.S. Government Securities Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such Treasury Index Rate, the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealer or ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ U.S. Government Securities Dealer or ~~LIBOR~~ U.S. Government Securities Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of~~ AMPS based upon information provided to it by Broker-Dealers for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of~~ AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of~~ AMPS to another Person. (fii) In the event of any partial redemption of ~~any series of~~ AMPS, upon notice in writing by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent in writing of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of~~ AMPS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of~~ AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership ~~of shares of a series~~ of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C A-3 to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day next preceding the ~~applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of~~ AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D A-4 to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of~~ AMPS and the seller failed to deliver such shares or (ii) sold any ~~shares of~~ AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent may, but shall not be ~~obligated~~obligated to, to request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners ~~of shares of any series~~ of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company~~Fund; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel that its failure to do so would be unlawful or (~~iii~~c) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 2 contracts

Samples: Auction Agency Agreement (Cohen & Steers Reit & Utility Income Fund Inc), Auction Agency Agreement (Cohen & Steers Select Utility Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a1) Pursuant to Section 2.5 hereof, the Trust shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Trust shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of ~~AMPS~~APS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Trust shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Trust shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b2) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c3) The provisions contained in ~~paragraph~~ Section 2 of Article VII of the ~~Articles Supplementary~~ Amended By-laws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Trust and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in Sections 2(e) and 2(f) of Article VII of the Amended By-laws, whenever the Trust intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of APS, the Trust will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Trust includes any additional amounts in a dividend as provided in Section 2(e) of Article VII of the Amended By-laws, the Trust will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Trust makes a Retroactive Taxable Allocation, the Trust, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the stock books of the Trust. The Trust, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (iii) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Section 1 of the Amended By-laws; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Trust as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Trust and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Trust so that the ~~Company~~ Trust can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Trust promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Trust does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (~~iii~~ii) If, after the date of this Agreement, there is any change in the prevailing rating of ~~AMPS~~ APS by ~~either of the rating agencies~~ Standard & Poor's Ratings Group (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary~~agencies), thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the ~~AMPS~~APS, as set forth in ~~said~~ the definition of Maximum Application Rate (the "~~Percentage or Spread~~Percentage"), the ~~Company~~ Trust shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for ~~AMPS~~ APS next succeeding such change. The Percentage for the ~~AMPS~~ APS on the date of this Agreement is ~~as specified in paragraph 10(a)(vii) of the Articles Supplementary~~110%. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the ~~Company~~ Trust (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (eiii) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of ~~AMPS~~ APS for purposes of each Auction. The ~~Company~~ Trust shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of ~~AMPS~~APS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of ~~AMPS~~ APS to another Person. (fiv) In the event of any partial redemption of any series of ~~AMPS~~APS, upon notice by the ~~Company~~ Trust to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of ~~AMPS~~ APS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Trust, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of ~~AMPS~~ APS shown in the Auction Agent's registry of Existing Holders. (iv) The Auction Agent shall register a transfer of the ownership of shares of a series of ~~AMPS~~ APS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Trust, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of ~~AMPS~~ APS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of ~~AMPS~~ APS and the seller failed to deliver such shares or (ii) sold any shares of ~~AMPS~~ APS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gvi) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of AMPS~~APS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Trust, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 2 contracts

Samples: Auction Agent Agreement (Eaton Vance Insured Municipal Bond Fund), Auction Agent Agreement (Eaton Vance Insured New York Municipal Bond Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) ~~As of~~ Prior to the ~~date hereof~~first Auction in which a Broker-Dealer will participate, the ~~Company~~ Fund shall provide the Auction Agent with a ~~list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a~~ manually signed Broker-Dealer Agreement ~~signed~~ executed by ~~each~~ such Broker-Dealer, if not previously so provided. The Auction Agent shall ~~keep~~ maintain a ~~list~~ current registry of Persons that are Existing Holders, which shall for this purpose be the Broker-Dealers ~~with whom it has signed~~ (such ~~Broker-Dealer Agreements~~registry being herein called the “Existing Holder Registry”). Such Persons shall constitute the Existing Holders for purposes of each Auction. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, (i) the results of each Auction, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such (ii) notices from any Existing Holder ~~continuing to hold or purchasing shares~~ as described in the first sentence of ~~AMPS~~Section 2.2(e). Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section D of Part I of Article X of the ~~Articles Supplementary~~ Bylaws concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. In the case of any conflict between the terms of any document incorporated herein by reference and the terms hereof, the Auction Agent shall not be liable for its actions or inaction in accordance with the terms of this Agreement. (c) The current Applicable Percentage is [200%]. In the event that the credit rating of the Preferred Shares changes in a way that results in a change in the Applicable Percentage, the Fund shall send prompt notice by Electronic Means in writing of such change to the Auction Agent. In the absence of its actual receipt of any such written notice, the Auction Agent is authorized to apply, and shall be fully protected in applying, the Applicable Percentage last communicated to it by the Fund in a notice or set forth above in this paragraph. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ distribution rate and the Maximum ~~Applicable~~ Rate. If any LIBOR Rate, Treasury Index Rate, Treasury Note Rate or Reference Rate, as the ~~rate obtained by the Auction Agent~~ case may be, is not quoted on an interest ~~or discount~~ equivalent basis, the Auction Agent shall convert the quoted rate to the interest equivalent thereof as set forth in the definition of such rate in the Bylaws if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference Rate is the applicable~~ any LIBOR Rate ~~and such rate~~ is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of ~~the applicable~~ such LIBOR Rate, the Auction Agent shall promptly ~~shall~~ notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute~~ substitute LIBOR Dealer or ~~Substitute~~ substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection. If Notwithstanding the ~~Company does~~ foregoing, if the LIBOR Rate is not ~~select any such Substitute~~ available, the Auction Agent shall use the LIBOR ~~Dealer or Substitute LIBOR Dealers, then~~ Rate as determined on the ~~rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~previous Auction Date. (iii) ~~If, after the date of this Agreement, there~~ If any Treasury Index Rate or Treasury Note Rate is ~~any change in the prevailing rating of AMPS~~ to be based on rates supplied by ~~either~~ U.S. Government Securities Dealers and one or more of the ~~rating agencies (or Substitute Rating Agency or successor rating agency) referred to in~~ U.S. Government Securities Dealers shall not provide a quotation for the ~~definition~~ determination of ~~the Maximum Applicable~~ such Treasury Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent shall promptly notify the Fund so that the Fund can determine whether to select a substitute U.S. Government Securities Dealer or substitute U.S. Government Securities Dealers to provide the quotation or quotations not being supplied by any U.S. Government Securities Dealer or U.S. Government Securities Dealers. The Fund shall promptly advise the Auction Agent of any such selection. (i) The Auction Agent shall register in ~~writing~~ the Existing Holder Registry a transfer of Preferred Shares from an Existing Holder to another Person only if (i) such transfer is pursuant to an Auction or (ii) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified in writing, which may be in Electronic Means acceptable to the Auction Agent, by the Existing Holder that is the transferor of such ~~change in the Percentage or Spread~~ transfer. The Auction Agent is not required to accept any notice of transfer delivered prior to ~~9:00 A.M.~~ an Auction unless it is received by the Auction Agent by 11:00 a.m. on the Auction Date ~~for AMPS next succeeding such change. The Percentage for~~ on which the ~~AMPS on the date of this Agreement~~ applicable Auction is ~~as specified in paragraph 10(a)(vii) of the Articles Supplementary~~taking place. The Auction Agent shall ~~be entitled to rely~~ rescind a transfer made on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of any Preferred Shares if the ~~shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to~~ Auction Agent has been notified in writing, which may be ~~provided~~ in Electronic Means acceptable to the Auction ~~Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS~~Agent, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, by the Agent Member ~~of any Existing Holder~~ or the Broker-Dealer of any ~~Existing Holder with respect~~ Person that (i) purchased any Preferred Shares and the seller failed to deliver such shares or (ii) sold any Preferred Shares and the purchaser failed to make payment to such ~~Existing Holder's transfer~~ Person upon delivery to the purchaser of ~~any shares of AMPS to another Person.~~such shares (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice in writing by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent in writing of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's ’s registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 2 contracts

Samples: Auction Agency Agreement (RMR Asia Pacific Real Estate Fund), Auction Agency Agreement (RMR Real Estate Income Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase APS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the ~~Articles Supplementary~~ Statement of Preferences concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Financial Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Financial Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ APS for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~APS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ APS to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~APS, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ APS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ APS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ APS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ APS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ APS and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ APS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section ~~3.2(c~~3.2(d) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~APS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 2 contracts

Samples: Auction Agency Agreement (Blackrock Municipal 2020 Term Trust), Auction Agency Agreement (Blackrock Florida Municipal 2020 Term Trust)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a1) Pursuant to Section 2.5 hereof, the Trust shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Trust shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of ~~AMPS~~APS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Trust shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Trust shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b2) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c3) The provisions contained in ~~paragraph~~ Section 2 of Article VII of the ~~Articles Supplementary~~ Amended By-laws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Trust and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in Sections 2(e) and 2(f) of Article VII of the Amended By-laws, whenever the Trust intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of APS, the Trust will notify the Auction Agent of the amount to be so included at least 5 Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Trust includes any additional amounts in a dividend as provided in Section 2(e) of Article VII of the Amended By-laws, the Trust will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify the Securities Depository and each Broker-Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Trust makes a Retroactive Taxable Allocation, the Trust, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the stock books of the Trust. The Trust, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (iii) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Section 1 of the Amended By-laws; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Trust as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Trust and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Trust so that the ~~Company~~ Trust can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Trust promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Trust does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (~~iii~~ii) If, after the date of this Agreement, there is any change in the prevailing rating of ~~AMPS~~ APS by ~~either of the rating agencies~~ Standard & Poor's Ratings Group (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary~~agencies), thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the ~~AMPS~~APS, as set forth in ~~said~~ the definition of Maximum Application Rate (the "~~Percentage or Spread~~Percentage"), the ~~Company~~ Trust shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for ~~AMPS~~ APS next succeeding such change. The Percentage for the ~~AMPS~~ APS on the date of this Agreement is ~~as specified in paragraph 10(a)(vii) of the Articles Supplementary~~110%. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the ~~Company~~ Trust (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (eiii) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of ~~AMPS~~ APS for purposes of each Auction. The ~~Company~~ Trust shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of ~~AMPS~~APS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of ~~AMPS~~ APS to another Person. (fiv) In the event of any partial redemption of any series of ~~AMPS~~APS, upon notice by the ~~Company~~ Trust to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of ~~AMPS~~ APS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Trust, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of ~~AMPS~~ APS shown in the Auction Agent's registry of Existing Holders. (iv) The Auction Agent shall register a transfer of the ownership of shares of a series of ~~AMPS~~ APS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Trust, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of ~~AMPS~~ APS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of ~~AMPS~~ APS and the seller failed to deliver such shares or (ii) sold any shares of ~~AMPS~~ APS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gvi) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of AMPS~~APS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Trust, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 2 contracts

Samples: Auction Agent Agreement (Eaton Vance Insured Municipal Bond Fund Ii), Auction Agent Agreement (Eaton Vance Insured Pennsylvania Municipal Bond Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in paragraph 2(f) of the Articles Supplementary, whenever the Company intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of AMPS, the Company will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Company, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Company includes any additional amounts in a dividend as provided in paragraph 2(f) of the Articles Supplementary, the Company will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Company, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Company makes a Retroactive Taxable Allocation, the Company, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the stock books of the Company. The Company, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph 1 of the Articles Supplementary; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the ~~Broker-~~Broker- Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the Company shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (fii) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-Dealers~~BrokerDealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of~~ AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 2 contracts

Samples: Auction Agent Agreement (Muniholdings New York Insured Fund Inc), Auction Agent Agreement (Muniholdings Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Fund and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based solely upon information provided to it by the Fund and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 3 of Part I of the ~~Articles Supplementary~~ Statement of Preferences concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (c) The Applicable Percentage and the Applicable Spread on the date of this Agreement are those rates as determined by the Fund and are 125% and 125 bps, respectively. If there is any change in the credit rating of AMPS by the rating agency (or substitute or successor rating agencies) referred to in the definition of "Applicable Percentage" and "Applicable Spread" resulting in any change in the Applicable Percentage or Applicable Spread for AMPS after the date given herewith, the Fund shall notify the Auction Agent in writing of such change in the Applicable Percentage or Applicable Spread prior to 12:00 Noon on the Business Day prior to the next Auction Date for any series of AMPS succeeding such change. In determining the Maximum Rate for a series of AMPS on any Auction Date as set forth in 2.6(a)(i) hereof, the Auction Agent shall be entitled to rely on the last Applicable Percentage and Applicable Spread for AMPS of which it has most recently received notice from the Fund (or, in the absence of such notice, the percentage or spread determined by reference to the definition of Applicable Percentage and Applicable Spread, respectively, in the Statement of Preferences). (i) On each Auction Date, the Auction Agent shall determine the ~~Reference~~ Applicable Rate and the Maximum ~~Applicable~~ Rate. If ~~the rate obtained by the Auction Agent~~ any Treasury Index Rate is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Statement of Preferences if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference Rate is the applicable~~ any LIBOR Rate ~~and such rate~~ is to be ~~based on rates supplied~~ determined by reference to Moneyline's Telerate Page 3750 or by rate quotations provided by LIBOR ~~Dealers~~ Dealer(s), as the case may be, and ~~one~~ Moneyline's Telerate Page 3750 is unavailable or ~~more of~~ the LIBOR ~~Dealers shall not~~ Dealer(s) fail to provide ~~a quotation for~~ rate quotations, as the ~~determination~~ case may be (as described in the Statement of ~~the applicable LIBOR Rate~~Preferences), then the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide such rate quotation(s) not being supplied. (iii) If any Treasury Index Rate is to be based on rates supplied by U.S. Government Securities Dealers and one or more of the U.S. Government Securities Dealers shall not provide a quotation for the determination of such Treasury Index Rate, the Auction Agent shall immediately notify the Fund so that the Fund can determine whether to select a Substitute U.S. Government Securities Dealer or Substitute U.S. Government Securities Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ U.S. Government Securities Dealer or ~~LIBOR~~ U.S. Government Securities Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of~~ AMPS based upon information provided to it by Broker-Dealers for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of~~ AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of~~ AMPS to another Person. (fii) In the event of any partial redemption of ~~any series of~~ AMPS, upon notice in writing by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent in writing of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of~~ AMPS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of~~ AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership ~~of shares of a series~~ of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if ~~(A)~~ such transfer is made pursuant to an Auction ~~or (B)~~ or, if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit ~~C to the Broker-Dealer Agreements~~B attached hereto, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day next preceding the ~~applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of~~ AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit ~~D to the Broker-Dealer Agreement~~C attached hereto, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of~~ AMPS and the seller failed to deliver such shares or (ii) sold any ~~shares of~~ AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent may, but shall not be ~~obligated~~obligated to, to request that the Broker-Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners ~~of shares of any series~~ of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company~~Fund; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel that its failure to do so would be unlawful or (~~iii~~c) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 2 contracts

Samples: Auction Agency Agreement (Clough Global Opportunities Fund), Auction Agency Agreement (Clough Global Opportunities Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Trust shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Trust shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of ~~AMPS~~APS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Trust shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Trust shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph~~ Section 2 of Article VII of the ~~Articles Supplementary~~ Amended By-laws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Trust and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) ~~On each Auction Date, the Auction Agent shall determine the Reference Rate~~ Except as otherwise provided in Sections 2(e) and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method 2(f) of ~~such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers~~ Article VII of the ~~Reference Rate so determined and of~~ Amended By-laws, whenever the ~~Maximum Applicable Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is~~ Trust intends to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if include any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 2 contracts

Samples: Auction Agent Agreement (Eaton Vance California Municipal Income Trust), Auction Agent Agreement (Eaton Vance Michigan Municipal Income Trust)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate and shall indicate ~~thereon, or on a separate list,~~ thereon the identity of each Existing Holder, if any, whose most recent Order was submitted ~~by a Broker-Dealer on such list~~ and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase ARP Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4(b) of Part I of the ~~Articles Supplementary~~ Statement concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ ARP Shares for purposes of each ~~Auction~~individual Auction based on the information provided to it from time to time by the Broker-Dealers. The Company shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS,~~ ARP Shares and the ~~Broker-Dealer~~ number of shares purchased by each such Existing ~~Holder through which such Existing Holder purchased such shares~~Holder. The Auction Agent may rely upon, as conclusive evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing ~~Holder,~~ Holder or the Agent Member ~~of any Existing Holder or the Broker-Dealer~~ of any Existing Holder with respect to such Existing Holder's ’s transfer of any ~~shares of AMPS~~ ARP Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~ARP Shares, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~ARP Shares) from the accounts of which ~~shares~~ ARP Shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ ARP Shares are to be redeemed) the number of ~~shares of such series of AMPS~~ ARP Shares of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ ARP Shares shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ ARP Shares from an Existing Holder to another Existing ~~Holder, or to another Person if permitted by the Company,~~ Holder only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ ARP Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ ARP Shares and the seller failed to deliver such ~~shares~~ ARP Shares or (ii) sold any ~~shares of AMPS~~ ARP Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~ARP Shares. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~ARP Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such ~~disclosure,~~ disclosure or (iib) it is advised by its counsel in writing that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 2 contracts

Samples: Auction Agency Agreement (Kayne Anderson MLP Investment CO), Auction Agency Agreement (Kayne Anderson MLP Investment CO)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in paragraph 2(f) of the Articles Supplementary, whenever the Company intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of AMPS, the Company will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Company, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Company includes any additional amounts in a dividend as provided in paragraph 2(f) of the Articles Supplementary, the Company will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Company, in turn it will notify the Securities Depository and each Broker-Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Company makes a Retroactive Taxable Allocation, the Company, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the stock books of the Company. The Company, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (e) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph 1 of the Articles Supplementary; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 2 contracts

Samples: Auction Agent Agreement (Muniholdings Insured Fund Ii Inc), Auction Agent Agreement (Muniholdings Insured Fund Iii Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Trust shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing ~~shares of~~ AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Trust shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Trust shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the ~~Articles Supplementary~~ Certificate of Designation concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Trust and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Trust as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Trust and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the ~~Company~~ Trust so that the ~~Company~~ Trust can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The ~~Company~~ Trust promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Trust does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 [12] of the ~~Articles Supplementary~~Certificate of Designation, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the ~~Company~~ Trust shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph [10(a)(vii) )] of the Articles Supplementary. The Auction Agent shall be entitled to conclusively rely on the last Percentage or Spread of which it has received notice from the ~~Company~~ Trust (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the ~~shares of each series of~~ AMPS for purposes of each Auction. The ~~Company~~ Trust shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of~~ AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of~~ AMPS to another Person. (f) In the event of any partial redemption of any ~~series of~~ AMPS, upon notice by the ~~Company~~ Trust to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to ~~shares of~~ such ~~series of~~ AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of~~ AMPS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Trust, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of~~ AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of~~ AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Trust, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of~~ AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of~~ AMPS and the seller failed to deliver such shares or (ii) sold any ~~shares of~~ AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of~~ any ~~series of~~ AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company~~Trust; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 2 contracts

Samples: Auction Agent Agreement (Muniyield Florida Insured Fund /Nj/), Auction Agent Agreement (Muniyield Pennsylvania Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Fund shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing ~~shares of~~ AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a ~~Broker-~~Broker- Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the ~~Articles Supplementary~~ Certificate of Designation concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in paragraph 2(f) of the Certificate of Designation, whenever the Fund intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on AMPS, the Fund will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Fund, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Fund includes any additional amounts in a dividend as provided in paragraph 2(f) of the Certificate of Designation, the Fund will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Fund, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Fund makes a Retroactive Taxable Allocation, the Fund, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the share books of the Fund. The Fund, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph 1 of the Certificate of Designation; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Fund as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the ~~Company~~ Fund shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the ~~Articles Supplementary~~Certificate of Designation. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the ~~Company~~ Fund (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The ~~Company~~ Fund shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of~~ AMPS to another Person. (fii) In the event of any partial redemption of any series of AMPS, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of~~ AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of~~ AMPS and the seller failed to deliver such shares or (ii) sold any ~~shares of~~ AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such ~~Broker-~~Broker- Dealers believe are Beneficial Owners ~~of shares of any series~~ of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 2 contracts

Samples: Auction Agent Agreement (Muniholdings Florida Insured Fund Iii), Auction Agent Agreement (Muniholdings Florida Insured Fund Ii)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a ~~Broker-~~Broker Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in ~~clause~~ paragraph (~~vii~~g) of ~~Paragraph (a)~~ Section 1 of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 3 of Part I of the ~~Articles Supplementary~~ Statement concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Maximum Rate and the Reference Rate. Not later than 9:30 a.m. on each Auction Date, the Auction Agent shall notify the Fund and the Broker-Dealers of the Maximum Rate and the Reference Rate. (ii) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum ~~Applicable~~ Rate. If ~~the rate obtained by the Auction Agent~~ any "AA" Financial Composite Commercial Paper Rate, Treasury Index Rate or Reference Rate is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Statement if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate in quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (iiiii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Financial Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Financial Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers, if any, or, if there are no such Commercial Paper Dealers, by the Auction Agent. (~~iii~~iv) ~~If, after~~ If the ~~date of this Agreement, there~~ Reference Rate is the Treasury Index Rate and if any ~~change in the prevailing rating of AMPS~~ Treasury Index Rate is to be based on rates supplied by ~~either~~ U.S. Government Securities Dealers and one or more of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread U.S. Government Securities Dealers shall not provide a quotation for the ~~AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing~~ determination of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemedTreasury Rate, the Auction Agent shall ~~request each Agent Member~~ immediately notify the Fund so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the ~~Auction Agent has been furnished with the name and telephone number of~~ Fund can determine whether to select a ~~person~~ substitute U.S. Government Securities Dealers or ~~department at such Agent Member from which it is~~ substitute U.S. Government Securities Dealers to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the ~~Auction Agent with a list of their respective customers that such Broker-~~quotation or quotations not being supplied by any U.S. Government Securities Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.U.S.

Appears in 2 contracts

Samples: Auction Agency Agreement (Evergreen Income Advantage Fund), Auction Agency Agreement (Evergreen Managed Income Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If any "AA" Composite Commercial Paper Rate, Treasury Index Rate or Reference Rate, as the ~~rate obtained by the Auction Agent~~ case may be, is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any "AA" Composite Commercial Paper Rate ~~is the applicable LIBOR Rate and such rate~~ is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) ~~If, after the date of this Agreement, there~~ If any Treasury Index Rate or Treasury Xxxx Rate is ~~any change in the prevailing rating of AMPS~~ to be based on rates supplied by ~~either~~ U.S. Government Securities Dealers and one or more of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread U.S. Government Securities Dealers shall not provide a quotation for the ~~AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing~~ determination of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemedTreasury Rate, the Auction Agent shall ~~request each Agent Member~~ immediately notify the Fund so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the ~~Auction Agent has been furnished with the name and telephone number of~~ Fund can determine whether to select a ~~person~~ substitute U.S. Government Securities Dealer or ~~department at such Agent Member from which it is~~ substitute U.S. Government Securities Dealers to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the ~~Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of~~ quotation or quotations not being supplied by any ~~series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-~~U.S. Government Securities Dealer ~~and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction~~ or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.U.S.

Appears in 2 contracts

Samples: Auction Agency Agreement (Cohen & Steers Premium Income Realty Fund Inc), Auction Agency Agreement (Cohen & Steers Quality Income Realty Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the ~~Broker-~~Broker- Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a ~~Broker-~~Broker- Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (id) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company Except as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iiotherwise provided in paragraph 2(f) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, ~~thereby resulting~~ whenever the Company intends to include any net capital gains or other income subject to regular Federal income tax in any ~~change in the corresponding applicable percentage or corresponding applicable spread for the~~ dividend on shares of AMPS~~, as set forth in said definition (the "Percentage or Spread")~~, the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to will notify the Auction Agent of the ~~identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member~~ amount to ~~contact regarding such redemption, and~~ be so included at least ~~two~~ five Business Days prior to the Auction ~~preceding~~ Date on which the ~~date of redemption with respect~~ Applicable Rate for such dividend is to ~~shares of such series of AMPS being partially redeemed,~~ be established. Whenever the Auction Agent ~~shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by~~ receives such ~~Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by~~ notice from the Company, ~~provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which~~ in turn it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the will notify each Broker-~~Dealer Agreements~~Dealer, by who, on or prior to such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date~~. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing~~, in ~~a notice substantially in the form of Exhibit D to the~~ accordance with its Broker-Dealer Agreement, by will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Company includes any additional amounts in a dividend as provided in paragraph 2(f) of the Articles Supplementary, the Company will notify the Auction Agent ~~Member~~ of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Company, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such sharesAgreement, will notify its Beneficial Owners. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 2 contracts

Samples: Auction Agent Agreement (Muniholdings Michigan Insured Fund Ii Inc), Auction Agent Agreement (Muniholdings New Jersey Insured Fund Iii Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the ~~notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures~~notice, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference~~ ‘AA’ Financial Composite Commercial Paper Rate or the Treasury Index Rate, as the case may be, and the Maximum ~~Applicable~~ Rate. If the ‘AA’ Financial Composite Commercial Paper Rate or the Treasury Index Rate, as the case may be, is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an ‘interest equivalent’, or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Fund as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers of the ~~Reference~~ ‘AA’ Financial Composite Commercial Paper Rate or the Treasury Index Rate, as the case may be, so determined and of the Maximum ~~Applicable~~ Rate. (ii) If the ~~Reference~~ ‘AA’ Financial Composite Commercial Paper Rate ~~is the applicable LIBOR Rate and such rate~~ is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ ‘AA’ Financial Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's ’s transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C B to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D C to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 2 contracts

Samples: Auction Agency Agreement, Auction Agency Agreement (Real Estate Income Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in paragraph 2(f) of the Articles Supplementary, whenever the Company intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of AMPS, the Company will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Company, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Company includes any additional amounts in a dividend as provided in paragraph 2(f) of the Articles Supplementary, the Company will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Company, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Company makes a Retroactive Taxable Allocation, the Company, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the stock books of the Company. The Company, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph 1 of the Articles Supplementary; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the ~~Broker-~~Broker- Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the Company shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (fii) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such ~~Broker-~~Broker- Dealers believe are Beneficial Owners of shares ~~of any series~~ of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant ~~Broker-~~Broker- Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 2 contracts

Samples: Auction Agent Agreement (Muniholdings New Jersey Insured Fund Inc), Auction Agent Agreement (Muniholdings California Insured Fund Ii Inc/)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to conclusively rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares ~~of each series~~ of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of~~ AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption ~~of any series~~ of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such series of~~ AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares ~~of such series~~ of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such series of~~ AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares ~~of a series~~ of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of~~ AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 2 contracts

Samples: Auction Agent Agreement (Muniyield California Insured Fund Ii Inc), Auction Agent Agreement (Muniyield California Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 11.2 of the ~~Articles Supplementary~~ Amended and Restated Bylaws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers ~~of the Reference Rate so determined and~~ of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ “AA” Financial Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ “AA” Financial Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's ’s transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by ~~3:00 P.M. on~~ 12:00 noon of the ~~Business Day next preceding the applicable Auction~~ Dividend Payment Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (Pimco Corporate & Income Strategy Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in ~~clause (vii) of Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 2.04 of the ~~Articles Supplementary~~ Supplemental Indenture concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate ~~so determined~~ and of the Maximum ~~Applicable Rate~~Rate in effect on such Auction Date. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ Tortoise Notes (the "Tortoise Note Register") for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~Tortoise Notes. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities of~~ Tortoise Note Register; provided, that the ~~Existing Holders, such list, the results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ may request the Broker-Dealer to provide a list of ~~any Existing Holder with respect~~ its customers if in its sole discretion it determines to ~~such Existing Holder's transfer~~ do so. The Auction Agent may conclusively rely upon the information furnished to the Auction Agent by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~Tortoise Notes, upon notice by the Company to the ~~Auction Agent~~ Trustee of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be mailed to the Holders of Tortoise Notes to be redeemed), the ~~Auction Agent~~ Trustee promptly shall request the Securities Depository to notify ~~the Auction Agent~~ it of the identities of the Agent Members (and the respective numbers of ~~shares~~Tortoise Notes) from the accounts of which ~~shares~~ Tortoise Notes have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the ~~Auction Agent~~ Trustee shall request each Agent Member so identified to disclose to ~~the Auction Agent~~ it (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Tortoise Notes are to be redeemed) the number of ~~shares of such series of AMPS~~ Tortoise Notes of each such Existing Holder, if any, to be redeemed by the Company, provided that the ~~Auction Agent~~ Trustee has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. Promptly upon its receipt of such information, the Trustee shall provide such information to the Auction Agent in writing. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Tortoise Notes shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Tortoise Notes from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Tortoise Notes if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Tortoise Notes and the seller failed to deliver such ~~shares~~ Tortoise Notes or (ii) sold any ~~shares of AMPS~~ Tortoise Notes and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~Tortoise Notes. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Tortoise Notes. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel in writing that its failure to do so would be ~~unlawful~~ unlawful, or (~~iii~~c) it is advised by its counsel in writing that failure to do so ~~would~~ could expose the Auction Agent to ~~loss,~~ loss liability, ~~claim,~~ claim or damage ~~or expense~~ for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise North American Energy Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a1) Pursuant to Section 2.5 hereof, the Trust shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Trust shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of ~~AMPS~~APS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Trust shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Trust shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b2) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c3) The provisions contained in ~~paragraph~~ Section 2 of Article VII of the ~~Articles Supplementary~~ Amended By-laws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Trust and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in Sections 2(e) and 2(f) of Article VII of the Amended By-laws, whenever the Trust intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of APS, the Trust will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Trust includes any additional amounts in a dividend as provided in Section 2(e) of Article VII of the Amended By-laws, the Trust will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify the Securities Depository and each Broker-Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Trust makes a Retroactive Taxable Allocation, the Trust, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the stock books of the Trust. The Trust, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (iii) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Section 1 of the Amended By-laws; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Trust as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Trust and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Trust so that the ~~Company~~ Trust can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Trust promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Trust does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (~~iii~~ii) If, after the date of this Agreement, there is any change in the prevailing rating of ~~AMPS~~ APS by ~~either of the rating agencies~~ Standard & Poor's Ratings Group (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary~~agencies), thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the ~~AMPS~~APS, as set forth in ~~said~~ the definition of Maximum Application Rate (the "~~Percentage or Spread~~Percentage"), the ~~Company~~ Trust shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for ~~AMPS~~ APS next succeeding such change. The Percentage for the ~~AMPS~~ APS on the date of this Agreement is ~~as specified in paragraph 10(a)(vii) of the Articles Supplementary~~110%. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the ~~Company~~ Trust (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (eiii) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of ~~AMPS~~ APS for purposes of each Auction. The ~~Company~~ Trust shall use its best efforts to provide or cause to be provided to the Auction Agent ~~within ten Business Days following~~ on the date of the Closing a list of the initial Existing Holders of each series of ~~AMPS~~APS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of ~~AMPS~~ APS to another Person. (fiv) In the event of any partial redemption of any series of ~~AMPS~~APS, upon notice by the ~~Company~~ Trust to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of ~~AMPS~~ APS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Trust, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of ~~AMPS~~ APS shown in the Auction Agent's registry of Existing Holders. (iv) The Auction Agent shall register a transfer of the ownership of shares of a series of ~~AMPS~~ APS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Trust, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of ~~AMPS~~ APS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of ~~AMPS~~ APS and the seller failed to deliver such shares or (ii) sold any shares of ~~AMPS~~ APS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gvi) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of AMPS~~APS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Trust, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agent Agreement (Eaton Vance Tax Advantaged Dividend Income Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be ~~changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures~~changed, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4(b) of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than ~~9:30 A.M.~~ 10:30 a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ MMP Shares (the “MMP Shares Register”) for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~MMP Shares. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities of~~ MMP Shares Register; provided, that the ~~Existing Holders, such list, the results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ may request the Broker-Dealer to provide a list of ~~any Existing Holder with respect~~ its customers if in its sole discretion it determines to ~~such Existing Holder's transfer~~ do so. The Auction Agent may conclusively rely upon the information furnished to the Auction Agent by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~MMP Shares, upon notice by the Company to the Auction Agent of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be given to the Holders of the MMP shares to be redeemed), the Auction Agent ~~promptly~~ shall at least three (3) Business Days prior to the date of redemption request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~MMP Shares) from the accounts of which ~~shares~~ MMP Shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the ~~Auction preceding the~~ date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each ~~Agent Member~~ Broker-Dealer so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ MMP Shares are to be redeemed) the number of ~~shares of such series of AMPS~~ MMP Shares of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such ~~Agent Member~~ Broker-Dealer from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ MMP Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ MMP Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder. The Auction Agent is not required~~ Holder only to ~~accept any notice of transfer delivered for an Auction unless it is received by~~ or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the ~~seller failed to deliver such shares~~ Company or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, other persons as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.the

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Infrastructure Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in ~~clause (vii) of Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 2.04 of the ~~Articles Supplementary~~ Supplemental Indenture concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Tortoise Notes for purposes of each ~~Auction~~individual Auction based on the information provided to it from time to time by the Broker-Dealer. The Auction Agent shall keep such list current and accurate and shall indicate thereon the identity of each Existing Holder, if any, whose most recent Order was submitted and resulted in such Existing Holder continuing to hold or purchase Tortoise Notes. The Company shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of Tortoise Notes, the number of notes purchased by each ~~series of AMPS,~~ such Existing Holder and the respective Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such ~~shares~~Tortoise Notes. The Auction Agent may rely upon, as conclusive evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Tortoise Notes to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Tortoise Notes, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~Tortoise Notes) from the accounts of which ~~shares~~ Tortoise Notes have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Tortoise Notes are to be redeemed) the number of ~~shares of such series of AMPS~~ Tortoise Notes of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Tortoise Notes shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Tortoise Notes from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Tortoise Notes if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Tortoise Notes and the seller failed to deliver such ~~shares~~ Tortoise Notes or (ii) sold any ~~shares of AMPS~~ Tortoise Notes and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~Tortoise Notes. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Tortoise Notes. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such ~~disclosure,~~ disclosure or (iib) it is advised by its counsel in writing that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Infrastructure Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a1) Pursuant to Section 2.5 hereof, the Trust shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Trust shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of ~~AMPS~~APS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Trust shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Trust shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b2) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c3) The provisions contained in ~~paragraph~~ Section 2 of Article VII of the ~~Articles Supplementary~~ Amended By-laws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Trust and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in Sections 2(e) and 2(f) of Article VII of the Amended By-laws, whenever the Trust intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of APS, the Trust will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Trust includes any additional amounts in a dividend as provided in Section 2(e) of Article VII of the Amended By-laws, the Trust will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify the Securities Depository and each Broker-Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Trust makes a Retroactive Taxable Allocation, the Trust, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the stock books of the Trust. The Trust, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (iii) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Section 1 of the Amended By-laws; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Trust as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Trust and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Trust so that the ~~Company~~ Trust can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Trust promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Trust does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (~~iii~~ii) If, after the date of this Agreement, there is any change in the prevailing rating of ~~AMPS~~ APS by ~~either of the rating agencies~~ Standard & Poor's Ratings Group (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary~~agencies), thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the ~~AMPS~~APS, as set forth in ~~said~~ the definition of Maximum Application Rate (the "~~Percentage or Spread~~Percentage"), the ~~Company~~ Trust shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for ~~AMPS~~ APS next succeeding such change. The Percentage for the ~~AMPS~~ APS on the date of this Agreement is ~~as specified in paragraph 10(a)(vii) of the Articles Supplementary~~110%. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the ~~Company~~ Trust (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (eiii) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of ~~AMPS~~ APS for purposes of each Auction. The ~~Company~~ Trust shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of ~~AMPS~~APS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of ~~AMPS~~ APS to another Person. (fiv) In the event of any partial redemption of any series of ~~AMPS~~APS, upon notice by the ~~Company~~ Trust to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of ~~AMPS~~ APS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Trust, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of ~~AMPS~~ APS shown in the Auction Agent's registry of Existing Holders. (iv) The Auction Agent shall register a transfer of the ownership of shares of a series of ~~AMPS~~ APS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Trust, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of ~~AMPS~~ APS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of ~~AMPS~~ APS and the seller failed to deliver such shares or (ii) sold any shares of ~~AMPS~~ APS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gvi) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of AMPS~~APS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Trust, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agent Agreement (Eaton Vance Insured California Municipal Bond Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 11.2 of the ~~Articles Supplementary~~ Second Amended and Restated Bylaws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers ~~of the Reference Rate so determined and~~ of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares who are Broker-Dealers for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by ~~3:00 P.M. on~~ 12:00 noon of the ~~Business Day next preceding the applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer ~~Agreements~~Agreement, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (Nicholas Applegate Convertible & Income Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. ` ----------------------------------------- (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the ~~Broker-~~Broker- Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each ~~Broker-~~Broker- Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (id) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company Except as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iiotherwise provided in paragraph 2(f) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, ~~thereby resulting~~ whenever the Company intends to include any net capital gains or other income subject to regular Federal income tax in any ~~change in the corresponding applicable percentage or corresponding applicable spread for the~~ dividend on shares of AMPS~~, as set forth in said definition (the "Percentage or Spread")~~, the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to will notify the Auction Agent of the ~~identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member~~ amount to ~~contact regarding such redemption, and~~ be so included at least ~~two~~ five Business Days prior to the Auction ~~preceding~~ Date on which the ~~date of redemption with respect~~ Applicable Rate for such dividend is to ~~shares of such series of AMPS being partially redeemed,~~ be established. Whenever the Auction Agent ~~shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by~~ receives such ~~Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by~~ notice from the Company, ~~provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which~~ in turn it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the will notify each Broker-~~Dealer Agreements~~Dealer, by who, on or prior to such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date~~. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing~~, in ~~a notice substantially in the form of Exhibit D to the~~ accordance with its Broker-Dealer Agreement, by will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Company includes any additional amounts in a dividend as provided in paragraph 2(f) of the Articles Supplementary, the Company will notify the Auction Agent ~~Member~~ of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Company, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such sharesAgreement, will notify its Beneficial Owners. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agent Agreement (Muniholdings Michigan Insured Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate and shall indicate ~~thereon, or on a separate list,~~ thereon the identity of each Existing Holder, if any, whose most recent Order was submitted ~~by a Broker-Dealer on such list~~ and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph~~ Section 2 of Article VIII of the ~~Articles Supplementary~~ Second Amended and Restated By-laws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers ~~of the Reference Rate so determined and~~ of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Financial Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Financial Composite Commercial Paper Rate, the Auction Agent shall promptly ~~shall~~ notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers if any, and if there is no such Commercial Paper Dealer or Commercial Paper Dealers, by the Auction Agent. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares for purposes of each ~~Auction~~individual Auction based on the information provided to it from time to time by the Broker-Dealer. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of Preferred Shares, the number of shares purchased by each ~~series of AMPS,~~ such Existing Holder and the respective Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such ~~shares~~Preferred Shares. The Auction Agent may rely upon, as conclusive evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~Preferred Shares) from the accounts of which ~~shares~~ Preferred Shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Preferred Shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder. The Auction Agent is not required~~ Holder only to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.through a

Appears in 1 contract

Samples: Auction Agency Agreement (Lehman Brothers First Trust Income Opportunity Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate and shall indicate ~~thereon, or on a separate list,~~ thereon the identity of each Existing Holder, if any, whose most recent Order was submitted ~~by a Broker-Dealer on such list~~ and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4(b) of Part I of the ~~Articles Supplementary~~ Statement concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Fund. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares for purposes of each ~~Auction~~individual Auction based on the information provided to it from time to time by the Broker-Dealer. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of Preferred Shares, the number of shares purchased by each ~~series of AMPS,~~ such Existing Holder and the respective Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such ~~shares~~Preferred Shares. The Auction Agent may rely upon, as conclusive evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~Preferred Shares) from the accounts of which ~~shares~~ Preferred Shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Preferred Shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Fund or other persons as the Fund permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such ~~shares~~ Preferred Shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~Preferred Shares. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such ~~disclosure,~~ disclosure or (iib) it is advised by its counsel in writing that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (First Trust/Four Corners Senior Floating Rate Income Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in ~~clause (vii) of Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4(b) of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (id) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ MMP Shares (the "MMP Shares Register") for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~MMP Shares. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities of~~ MMP Shares Register; provided, that the ~~Existing Holders, such list, the results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ may request the Broker-Dealer to provide a list of ~~any Existing Holder with respect~~ its customers if in its sole discretion it determines to ~~such Existing Holder's transfer~~ do so. The Auction Agent may conclusively rely upon the information furnished to the Auction Agent by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~MMP Shares, upon notice by the Company to the Auction Agent of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be mailed to the Holders of the MMP shares to be redeemed), the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~MMP Shares) from the accounts of which ~~shares~~ MMP Shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ MMP Shares are to be redeemed) the number of ~~shares of such series of AMPS~~ MMP Shares of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ MMP Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ MMP Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ MMP Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ MMP Shares and the seller failed to deliver such ~~shares~~ MMP Shares or (ii) sold any ~~shares of AMPS~~ MMP Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~MMP Shares. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~MMP Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel in writing that its failure to do so would be unlawful or (~~iii~~c) it is advised by its counsel that failure to do so ~~would~~ could expose the Auction Agent to loss, liability, ~~claim,~~ claim or damage ~~or expense~~ for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Infrastructure Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be ~~changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures~~changed, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 2.04 of the ~~Articles Supplementary~~ Supplemental Indenture concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate ~~so determined~~ and of the Maximum ~~Applicable Rate~~Rate in effect on such Auction Date. (ii) If the Reference Rate is the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ Tortoise Notes (the “Tortoise Note Register”) for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~Tortoise Notes. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities of~~ Tortoise Note Register; provided, that the ~~Existing Holders, such list, the results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ may request the Broker-Dealer to provide a list of ~~any Existing Holder with respect~~ its customers if in its sole discretion it determines to ~~such Existing Holder's transfer~~ do so. The Auction Agent may conclusively rely upon the information furnished to the Auction Agent by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~Tortoise Notes, upon notice by the Company to the ~~Auction Agent~~ Trustee of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be given to the Holders of Tortoise Notes to be redeemed), the ~~Auction Agent~~ Trustee promptly shall request the Securities Depository to notify ~~the Auction Agent~~ it of the identities of the Agent Members (and the respective numbers of ~~shares~~Tortoise Notes) from the accounts of which ~~shares~~ Tortoise Notes have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the ~~Auction preceding~~ the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the ~~Auction Agent~~ Trustee shall request each Agent Member so identified to disclose to ~~the Auction Agent~~ it (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Tortoise Notes are to be redeemed) the number of ~~shares of such series of AMPS~~ Tortoise Notes of each such Existing Holder, if any, to be redeemed by the Company, provided that the ~~Auction Agent~~ Trustee has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. Promptly upon its receipt of such information, the Trustee shall provide such information to the Auction Agent in writing. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Tortoise Notes shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Tortoise Notes from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Tortoise Notes if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Tortoise Notes and the seller failed to deliver such ~~shares~~ Tortoise Notes or (ii) sold any ~~shares of AMPS~~ Tortoise Notes and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~Tortoise Notes. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Tortoise Notes. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel in writing that its failure to do so would be ~~unlawful~~ unlawful, or (~~iii~~c) it is advised by its counsel in writing that failure to do so ~~would~~ could expose the Auction Agent to ~~loss,~~ loss liability, ~~claim,~~ claim or damage ~~or expense~~ for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Infrastructure Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Fund and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 3 of Part I of the ~~Articles Supplementary~~ Statement of Preferences concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (c) The Applicable Percentage and the Applicable Spread on the date of the Agreement are those rates as determined by the Fund and provided to the Auction Agent on the date even herewith. If there is any change in the credit rating of AMPS by the rating agency (or substitute or successor rating agencies) referred to in the definition of "Applicable Percentage" and "Applicable Spread" resulting in any change in the Applicable Percentage or Applicable Spread for AMPS after the date given herewith, the Fund shall notify the Auction Agent in writing of such change in the Applicable Percentage or Applicable Spread prior to 12:00 Noon on the Business Day prior to the next Auction Date for any series of AMPS succeeding such change. In determining the Maximum Rate for any series of AMPS on any Auction Date as set forth in 2.6(a)(i) hereof, the Auction Agent shall be entitled to rely on the last Applicable Percentage and Applicable Spread for AMPS of which it has most recently received notice from the Fund (or, in the absence of such notice, the percentage or spread determined by reference to the definition ofApplicable Percentage and Applicable Spread, respectively). (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If ~~the rate obtained by the Auction Agent~~ any Treasury Index Rate is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Statement of Preferences if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference Rate is the applicable~~ any LIBOR Rate ~~and such rate~~ is to be ~~based on rates supplied~~ determined by reference to Moneyline's Telerate Page 3750 or by rate quotations provided by LIBOR ~~Dealers~~ Dealer(s), as the case may be, and ~~one~~ Moneyline's Telerate Page 3750 is unavailable or ~~more of~~ the LIBOR ~~Dealers shall not~~ Dealer(s) fail to provide ~~a quotation for~~ rate quotations, as the ~~determination~~ case may be (as described in the Statement of ~~the applicable LIBOR Rate~~Preferences), then the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide such rate quotation(s) not being supplied. (iii) If any Treasury Index Rate is to be based on rates supplied by U.S. Government Securities Dealers and one or more of the U.S. Government Securities Dealers shall not provide a quotation for the determination of such Treasury Index Rate, the Auction Agent shall immediately notify the Fund so that the Fund can determine whether to select a substitute U.S. Government Securities Dealer or substitute U.S. Government Securities Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ U.S. Government Securities Dealer or ~~LIBOR~~ U.S. Government Securities Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of~~ AMPS based upon information provided to it by Broker-Dealers for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of~~ AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of~~ AMPS to another Person. (fii) In the event of any partial redemption of ~~any series of~~ AMPS, upon notice in writing by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent in writing of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of~~ AMPS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of~~ AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership ~~of shares of a series~~ of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if ~~(A)~~ such transfer is made pursuant to an Auction ~~or (B)~~ or, if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit ~~C to the Broker-Dealer Agreements~~B attached hereto, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day next preceding the ~~applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of~~ AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit ~~D to the Broker-Dealer Agreement~~C attached hereto, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of~~ AMPS and the seller failed to deliver such shares or (ii) sold any ~~shares of~~ AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent may, but shall not be ~~obligated~~obligated to, to request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners ~~of shares of any series~~ of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company~~Fund; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel that its failure to do so would be unlawful or (~~iii~~c) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Reaves Utility Income Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the ~~Broker-~~Broker- Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (id) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company Except as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iiotherwise provided in paragraph 2(f) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, ~~thereby resulting~~ whenever the Company intends to include any net capital gains or other income subject to regular Federal income tax in any ~~change in the corresponding applicable percentage or corresponding applicable spread for the~~ dividend on shares of AMPS~~, as set forth in said definition (the "Percentage or Spread")~~, the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to will notify the Auction Agent of the ~~identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member~~ amount to ~~contact regarding such redemption, and~~ be so included at least ~~two~~ five Business Days prior to the Auction ~~preceding~~ Date on which the ~~date of redemption with respect~~ Applicable Rate for such dividend is to ~~shares of such series of AMPS being partially redeemed,~~ be established. Whenever the Auction Agent ~~shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by~~ receives such ~~Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by~~ notice from the Company, ~~provided that the Auction Agent has been furnished with the name and telephone number of a person~~ in turn it will notify each Broker- Dealer, who, on or ~~department at~~ prior to such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date~~. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing~~, in ~~a notice substantially in the form of Exhibit D to the~~ accordance with its Broker-Dealer Agreement, by will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Company includes any additional amounts in a dividend as provided in paragraph 2(f) of the Articles Supplementary, the Company will notify the Auction Agent ~~Member~~ of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Company, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such sharesAgreement, will notify its Beneficial Owners. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agent Agreement (Muniholdings New Jersey Insured Fund Ii Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Series Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (c) The Applicable Percentage and the Applicable Spread on the date of the Agreement are those rates as determined by the Fund and provided to the Auction Agent on the date even herewith. If there is any change in the credit rating of Series Preferred Shares by the rating agency (or substitute or successor rating agencies) referred to in the definition of “Applicable Percentage” and “Applicable Spread” resulting in any change in the Applicable Percentage or Applicable Spread for Series Preferred Shares after the date given herewith, the Fund shall notify the Auction Agent in writing of such change in the Applicable Percentage or Applicable Spread prior to 12:00 Noon on the Business Day prior to the next Auction Date for any series of Series Preferred Shares succeeding such change. In determining the Maximum Rate for any series of Series Preferred Shares on any Auction Date as set forth in 2.5(a)(i) hereof, the Auction Agent shall be entitled to rely on the last Applicable Percentage and Applicable Spread for Series Preferred Shares of which it has most recently received notice from the Fund (or, in the absence of such notice, the percentage or spread determined by reference to the definition of Applicable Percentage and Applicable Spread, respectively). (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If ~~the rate obtained by the Auction Agent~~ any Treasury Index Rate is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any LIBOR Rate is to be determined by reference to Moneyline’s Telerate Page 3750 or by rate quotations provided by LIBOR Dealer(s), as the ~~applicable~~ case may be, and Moneyline’s Telerate Page 3750 is unavailable or the LIBOR ~~Rate and~~ Dealer(s) fail to provide rate quotations, as the case may be (as described in the Articles Supplementary), then the Auction Agent shall immediately notify the Fund so that the Fund can determine whether to select a Substitute LIBOR Dealer(s) to provide such rate quotation(s) not being supplied. (iii) If any Treasury Index Rate is to be based on rates supplied by ~~LIBOR~~ U.S. Government Securities Dealers and one or more of the ~~LIBOR~~ U.S. Government Securities Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such Treasury Index Rate, the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealer or ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ U.S. Government Securities Dealer or ~~LIBOR~~ U.S. Government Securities Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Series Preferred Shares based upon information provided to it by Broker-Dealers for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Series Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's ’s transfer of any ~~shares of AMPS~~ Series Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Series Preferred Shares, upon notice in writing by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent in writing of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Series Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Series Preferred Shares shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Series Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C A-3 to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day next preceding the ~~applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Series Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D A-4 to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Series Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Series Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent may, but shall not be ~~obligated~~obligated to, to request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Series Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company~~Fund; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel that its failure to do so would be unlawful or (~~iii~~c) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Cohen & Steers Reit & Utility Income Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without prior written approval of the ~~date hereof~~Auction Agent (which approval shall not be unreasonably withheld). At the time of the closing of the initial issuance and sale of the AMPS (the "Closing"), the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and ~~accurate~~ accurate, and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than ~~five Business Days~~ seven days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) ~~The provisions contained~~ With respect to each Dividend Period that is a Special Dividend Period, the Company may, at its sole option and to the extent permitted by law, by telephonic and written notice (a "Request for a Special Dividend Period") to the Auction Agent and to each Broker-Dealer, request that the next succeeding Dividend Period for a series of AMPS will be a number of days (other than the number of days in ~~paragraph 2~~ the applicable Regular Dividend Period), evenly divisible by seven, and not fewer than seven nor more than 364 in the case of a Short Term Dividend Period or a number of whole years not greater than five years in the case of a Long Term Dividend Period, specified in such notice, provided that for any Auction occurring after the initial Auction, the Company may not give a Request for a Special Dividend Period (and any such request shall be null and void) unless the Company has received written confirmation from Xxxxx'x and S&P that such action would not impair the rating then assigned to the AMPS by Xxxxx'x and S&P and unless sufficient Clearing Bids were made in the last occurring Auction and unless full cumulative dividends and any amounts due with respect to redemptions payable prior to such date have been paid in full. Such Request for a Special Dividend Period, in the case of a Short Term Dividend Period, shall be given on or prior to the fourth day but not more than seven days prior to an Auction Date for the AMPS and, in the case of a Long Term Dividend Period, shall be given on or prior to the 14th day but not more than 28 days prior to the Auction Date for the AMPS. Upon receiving such Request for a Special Dividend Period, the Broker-Dealers(s) shall jointly determine whether given the factors set forth in Paragraph 3(c)(iii) of Article Sixth of the ~~Articles Supplementary concerning~~ Charter it is advisable that the Company issue a Notice of Special Dividend Period for the AMPS as contemplated by such Request for a Special Dividend Period and the Optional Redemption Price of the AMPS during such Special Dividend Period and the Specific Redemption Provisions and shall give the Company and the Auction Agent written notice (a "Response") of such determination by no later than the third day prior to such Auction Date. In making such determination the Broker-Dealer(s) will consider (i) existing short-term and long-term market rates and indices of such short-term and long-term rates, (ii) existing market supply and demand for short-term and long-term securities, (iii) existing yield curves for short-term and long-term securities comparable to the AMPS, (iv) industry and financial conditions which may affect the AMPS, (v) the investment objective of the Company, and (vi) the Dividend Periods and dividend rates at which current and potential beneficial holders of the ~~notification~~ AMPS would remain or become beneficial holders. If the Broker-Dealer(s) shall not give the Company and the Auction Agent a Response by such third day or if the Response states that given the factors referred to above it is not advisable that the Company give a Notice of a Special Dividend Period ~~will be followed by~~ (as defined below) for the AMPS, the Company ~~and~~may not give a Notice of a Special Dividend Period in respect of such Request for a Special Dividend Period. In the event the Response indicates that it is advisable that the Company give a Notice of Special Dividend Period for the AMPS, the Company may by no later than the second day prior to ~~the extent applicable,~~ such Auction Date give a notice (a "Notice of a Special Dividend Period") to the Auction Agent, the Securities Depository and each Broker-Dealer, which notice will specify (i) the duration of the Special Dividend Period, (ii) the Optional Redemption Price as specified in the related Response, and (iii) the Specific Redemption Provisions, if any, as specified in the related Response. The Company shall not give a Notice of a Special Dividend Period, or, if such Notice of a Special Dividend Period shall have already been given, shall give telephonic and written notice (a "Notice of Revocation") to the Auction Agent, each Broker-Dealer, and the ~~provisions contained therein are incorporated herein by reference~~ Securities Depository on or prior to the Business Day prior to the relevant Auction Date if (x) either the 1940 Act AMPS Coverage is not satisfied or the Company shall fail to maintain the AMPS Basic Maintenance Amount on each of the two Valuation Dates immediately preceding the Business Day prior to the relevant Auction Date on an actual basis and on a pro forma basis giving effect to the proposed Special Dividend Period (using as a pro forma dividend rate with respect to such Special Dividend Period the dividend rate which the Broker-Dealers shall advise the Company is an approximately equal rate for securities similar to the AMPS with an equal dividend period), provided that in ~~their entirety and~~ calculating the aggregate Discounted Value of Eligible Portfolio Property, the Xxxxx'x exposure period shall be deemed to be one week longer than the period utilized to produce the discount factors assigned by Xxxxx'x under the definition of Discount Factors found in Paragraph 1(a) of Article Sixth of the Charter, (y) sufficient funds for the payment of dividends payable on the immediately succeeding Dividend Payment Date have not been irrevocably deposited with the Auction Agent by the close of business on the third Business Day preceding the related Auction Date, or (z) the Broker-Dealer(s) jointly advise the Company that after consideration of the factors referred to above they have concluded that it is advisable to give a ~~part~~ Notice of ~~this Agreement~~ Revocation. If the Company is prohibited from giving a Notice of a Special Dividend Period as a result of the factors enumerated in clause (x), (y), or (z) of the preceding sentence or if the Company gives a Notice of Revocation with respect to a Notice of a Special Dividend Period, the ~~same extent as if~~ next succeeding Dividend Period will be a Regular Dividend Period. In addition, in the event sufficient Clearing Bids are not made in any Auction or such ~~provisions were set forth fully herein~~Auction is not held for any reason, the next succeeding Dividend Period will be a Regular Dividend Period and the Company may not again give a Notice of a Special Dividend Period (and any such attempted notice shall be null and void) until sufficient Clearing Bids have been made in an Auction with respect to a Regular Dividend Period. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Paragraph 1 of Article Sixth of the Charter; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction ~~Date~~Date for each series of AMPS, the Auction Agent shall notify the Company and the Broker-Dealers by telephone of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ shall immediately notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company shall promptly ~~shall~~ advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Applicable Percentage"), the Company shall notify the Auction Agent in writing of such change in the Applicable Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Applicable Percentage for the AMPS on the date of this Agreement is as specified in ~~paragraph 10(a)(vii~~Paragraph 8(a)(vii) of Article Sixth of the ~~Articles Supplementary~~Charter. The Auction Agent shall be entitled to rely on the last Applicable Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Applicable Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of for each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders~~, such list~~, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (fii) In the event of any partial redemption of any ~~series of~~ Series G AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent shall promptly ~~shall~~ request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such ~~redemption~~redemption and, ~~and~~ at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, ; provided ~~that~~ the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as ~~having ownership~~ the beneficial owner of the number of shares of ~~such series of~~ the Series G AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the beneficial ownership of shares of ~~a series of~~ the Series G AMPS from an Existing Holder to another ~~Existing Holder, or to another~~ Person ~~if permitted by the Company,~~ only if (A) such transfer is ~~made~~ pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified ~~of such transfer~~ in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing ~~Holder or by~~ Holder, the Agent Member of such Existing Holder, or the Broker-Dealer of such Existing Holder of such transfer. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in ~~writing,~~ writing in a notice substantially in the form of Exhibit D to the Broker-Dealer ~~Agreement,~~ Agreement by the Agent Member or the Broker-Dealer of any Person that (i1) purchased any shares of AMPS and the seller failed to deliver such shares or (ii2) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are ~~Beneficial Owners~~ Existing Holders of shares of ~~any series~~ AMPS and the aggregate principal amount of ~~AMPS~~shares of AMPS held by such Existing Holders. ~~The~~ Except as provided in Section 2.7 hereof, the Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure~~ unlawful. Notwithstanding the above, and as necessary to ~~do so would expose~~ comply with applicable securities laws, either the Auction Agent or the Company may disclose to ~~loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory~~ anyone any information with respect to itthe United States federal income tax treatment and tax structure of this arrangement.

Appears in 1 contract

Samples: Auction Agent Agreement (Aberdeen Asia Pacific Income Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. The Fund shall have the authority to appoint and remove any Broker-Dealer as set forth in Section 2.5 of this Agreement. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the ~~notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures~~notice, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the ~~Articles Supplementary~~ Statement concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum ~~Applicable~~ Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Fund as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers of the Reference Rate so determined and of the Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Financial Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Financial Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon written notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by ~~3:00 P.M. on~~ 12:00 noon of the ~~Business Day next preceding the applicable Auction~~ Dividend Payment Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (Aim Select Real Estate Income Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ the Certificate of ~~the Articles Supplementary~~ Vote concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. In the case of any conflict between the terms of any document incorporated herein by reference and the terms hereof, the Auction Agent shall not be liable for its actions or inaction in accordance with the terms of this Agreement. (c) The current Applicable Percentage is 150%. In the event that the credit rating of the Preferred Shares changes in a way that results in a change in the Applicable Percentage, the Fund shall send prompt notice of such change to the Auction Agent. In the absence of its actual receipt of any such notice, the Auction Agent is authorized to apply, and shall be fully protected in applying, the Applicable Percentage last communicated to it by the Fund in a notice or set forth above in this paragraph. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If any "AA" Financial Composite Commercial Paper Rate, Treasury Index Rate, Treasury Note Rate or Reference Rate, as the ~~rate obtained by the Auction Agent~~ case may be, is not quoted on an interest ~~or discount~~ equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest equivalent thereof as set forth in the definition of such rate in the Certificate of Vote if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any "AA" Financial Composite Commercial Paper Rate ~~is the applicable LIBOR Rate and such rate~~ is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such "AA" Financial Composite Commercial Paper Rate, the Auction Agent shall promptly ~~shall~~ notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) ~~If, after the date of this Agreement, there~~ If any Treasury Index Rate or Treasury Note Rate is ~~any change in the prevailing rating of AMPS~~ to be based on rates supplied by ~~either~~ U.S. Government Securities Dealers and one or more of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread U.S. Government Securities Dealers shall not provide a quotation for the ~~AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing~~ determination of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemedTreasury Rate, the Auction Agent shall ~~request each Agent Member~~ promptly notify the Fund so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the ~~Auction Agent has been furnished with the name and telephone number of~~ Fund can determine whether to select a ~~person~~ substitute U.S. Government Securities Dealer or ~~department at such Agent Member from which it is~~ substitute U.S. Government Securities Dealers to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the ~~Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of~~ quotation or quotations not being supplied by any ~~series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-~~U.S. Government Securities Dealer ~~and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction~~ or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.U.S.

Appears in 1 contract

Samples: Auction Agency Agreement (Van Kampen Senior Income Trust)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate and shall indicate ~~thereon, or on a separate list,~~ thereon the identity of each Existing Holder, if any, whose most recent Order was submitted ~~by a Broker-Dealer on such list~~ and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4(b) of Part I of the ~~Articles Supplementary~~ Statement concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (id) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers of the Reference Rate ~~so determined~~ and of the Maximum ~~Applicable Rate~~Rate in effect on such Auction Date. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of~~ AMPS for purposes of each ~~Auction~~individual Auction based on the information provided to it from time to time by the Broker-Dealer. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of~~ AMPS, the number of shares purchased by each such Existing Holder and the respective Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such ~~shares~~AMPS. The Auction Agent may rely upon, as conclusive evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of~~ AMPS to another Person. (fii) In the event of any partial redemption of ~~any series of~~ AMPS, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~AMPS) from the accounts of which ~~shares~~ AMPS have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ AMPS are to be redeemed) the number ~~of shares of such series~~ of AMPS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of~~ AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership ~~of shares of a series~~ of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Fund or other persons as the Fund permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of~~ AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of~~ AMPS and the seller failed to deliver such ~~shares~~ AMPS or (ii) sold any ~~shares of~~ AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~AMPS. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of~~ AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the ~~relevant~~ Broker-Dealer that provided such information and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such ~~disclosure,~~ disclosure or (iib) it is advised by its counsel in writing that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (First Trust Four Corners Senior Floating Rate Income Fund Ii)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in ~~clause (vii) of Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 2.04 of the ~~Articles Supplementary~~ Supplemental Indenture concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate ~~so determined~~ and of the Maximum ~~Applicable Rate~~Rate in effect on such Auction Date. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ Tortoise Notes (the "Tortoise Note Register") for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~Tortoise Notes. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities of~~ Tortoise Note Register; provided, that the ~~Existing Holders, such list, the results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ may request the Broker-Dealer to provide a list of ~~any Existing Holder with respect~~ its customers if in its sole discretion it determines to ~~such Existing Holder's transfer~~ do so. The Auction Agent may conclusively rely upon the information furnished to the Auction Agent by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~Tortoise Notes, upon notice by the Company to the Auction Agent of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be mailed to the Holders of Tortoise Notes to be redeemed), the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~Tortoise Notes) from the accounts of which ~~shares~~ Tortoise Notes have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Tortoise Notes are to be redeemed) the number of ~~shares of such series of AMPS~~ Tortoise Notes of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Tortoise Notes shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Tortoise Notes from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Tortoise Notes if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Tortoise Notes and the seller failed to deliver such ~~shares~~ Tortoise Notes or (ii) sold any ~~shares of AMPS~~ Tortoise Notes and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~Tortoise Notes. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Tortoise Notes. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel in writing that its failure to do so would be ~~unlawful~~ unlawful, or (~~iii~~c) it is advised by its counsel in writing that failure to do so ~~would~~ could expose the Auction Agent to ~~loss,~~ loss liability, ~~claim,~~ claim or damage ~~or expense~~ for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Capital Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each ~~such~~ Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing ~~shares of AMPS~~Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (~~vii~~G) of Paragraph (aI) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.the

Appears in 1 contract

Samples: Auction Agent Agreement (Eog Resources Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without prior written approval of the ~~date hereof~~Auction Agent (which approval shall not be unreasonably withheld). At the time of the closing of the initial issuance and sale of the AMPS (the "Closing"), the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and ~~accurate~~ accurate, and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than ~~five Business Days~~ seven days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) ~~The provisions contained~~ With respect to each Dividend Period that is a Special Dividend Period, the Company may, at its sole option and to the extent permitted by law, by telephonic and written notice (a "Request for a Special Dividend Period") to the Auction Agent and to each Broker-Dealer, request that the next succeeding Dividend Period for a series of AMPS will be a number of days (other than the number of days in ~~paragraph 2~~ the applicable Regular Dividend Period), evenly divisible by seven, and not fewer than seven nor more than 364 in the case of a Short Term Dividend Period or a number of whole years not greater than five years in the case of a Long Term Dividend Period, specified in such notice, provided that for any Auction occurring after the initial Auction, the Company may not give a Request for a Special Dividend Period (and any such request shall be null and void) unless the Company has received written confirmation from Xxxxx'x and S&P that such action would not impair the rating then assigned to the AMPS by Xxxxx'x and S&P and unless sufficient Clearing Bids were made in the last occurring Auction and unless full cumulative dividends and any amounts due with respect to redemptions payable prior to such date have been paid in full. Such Request for a Special Dividend Period, in the case of a Short Term Dividend Period, shall be given on or prior to the fourth day but not more than seven days prior to an Auction Date for the AMPS and, in the case of a Long Term Dividend Period, shall be given on or prior to the 14th day but not more than 28 days prior to the Auction Date for the AMPS. Upon receiving such Request for a Special Dividend Period, the Broker-Dealers(s) shall jointly determine whether given the factors set forth in Paragraph 3(c)(iii) of Article Sixth of the ~~Articles Supplementary concerning~~ Charter it is advisable that the Company issue a Notice of Special Dividend Period for the AMPS as contemplated by such Request for a Special Dividend Period and the Optional Redemption Price of the AMPS during such Special Dividend Period and the Specific Redemption Provisions and shall give the Company and the Auction Agent written notice (a "Response") of such determination by no later than the third day prior to such Auction Date. In making such determination the Broker-Dealer(s) will consider (i) existing short-term and long-term market rates and indices of such short-term and long-term rates, (ii) existing market supply and demand for short-term and long-term securities, (iii) existing yield curves for short-term and long-term securities comparable to the AMPS, (iv) industry and financial conditions which may affect the AMPS, (v) the investment objective of the Company, and (vi) the Dividend Periods and dividend rates at which current and potential beneficial holders of the ~~notification~~ AMPS would remain or become beneficial holders. If the Broker-Dealer(s) shall not give the Company and the Auction Agent a Response by such third day or if the Response states that given the factors referred to above it is not advisable that the Company give a Notice of a Special Dividend Period ~~will be followed by~~ (as defined below) for the AMPS, the Company ~~and~~may not give a Notice of a Special Dividend Period in respect of such Request for a Special Dividend Period. In the event the Response indicates that it is advisable that the Company give a Notice of Special Dividend Period for the AMPS, the Company may by no later than the second day prior to ~~the extent applicable,~~ such Auction Date give a notice (a "Notice of a Special Dividend Period") to the Auction Agent, the Securities Depository and each Broker-Dealer, which notice will specify (i) the duration of the Special Dividend Period, (ii) the Optional Redemption Price as specified in the related Response, and (iii) the Specific Redemption Provisions, if any, as specified in the related Response. The Company shall not give a Notice of a Special Dividend Period, or, if such Notice of a Special Dividend Period shall have already been given, shall give telephonic and written notice (a "Notice of Revocation") to the Auction Agent, each Broker-Dealer, and the ~~provisions contained therein are incorporated herein by reference~~ Securities Depository on or prior to the Business Day prior to the relevant Auction Date if (x) either the 1940 Act AMPS Coverage is not satisfied or the Company shall fail to maintain the AMPS Basic Maintenance Amount on each of the two Valuation Dates immediately preceding the Business Day prior to the relevant Auction Date on an actual basis and on a pro forma basis giving effect to the proposed Special Dividend Period (using as a pro forma dividend rate with respect to such Special Dividend Period the dividend rate which the Broker-Dealers shall advise the Company is an approximately equal rate for securities similar to the AMPS with an equal dividend period), provided that in ~~their entirety and~~ calculating the aggregate Discounted Value of Eligible Portfolio Property, the Xxxxx'x exposure period shall be deemed to be one week longer than the period utilized to produce the discount factors assigned by Xxxxx'x under the definition of Discount Factors found in Paragraph 1(a) of Article Sixth of the Charter, (y) sufficient funds for the payment of dividends payable on the immediately succeeding Dividend Payment Date have not been irrevocably deposited with the Auction Agent by the close of business on the third Business Day preceding the related Auction Date, or (z) the Broker-Dealer(s) jointly advise the Company that after consideration of the factors referred to above they have concluded that it is advisable to give a ~~part~~ Notice of ~~this Agreement~~ Revocation. If the Company is prohibited from giving a Notice of a Special Dividend Period as a result of the factors enumerated in clause (x), (y), or (z) of the preceding sentence or if the Company gives a Notice of Revocation with respect to a Notice of a Special Dividend Period, the ~~same extent as if~~ next succeeding Dividend Period will be a Regular Dividend Period. In addition, in the event sufficient Clearing Bids are not made in any Auction or such ~~provisions were set forth fully herein~~Auction is not held for any reason, the next succeeding Dividend Period will be a Regular Dividend Period and the Company may not again give a Notice of a Special Dividend Period (and any such attempted notice shall be null and void) until sufficient Clearing Bids have been made in an Auction with respect to a Regular Dividend Period. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Paragraph 1 of Article Sixth of the Charter; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction ~~Date~~Date for each series of AMPS, the Auction Agent shall notify the Company and the Broker-Dealers by telephone of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ shall immediately notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company shall promptly ~~shall~~ advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Applicable Percentage"), the Company shall notify the Auction Agent in writing of such change in the Applicable Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Applicable Percentage for the AMPS on the date of this Agreement is as specified in ~~paragraph 10(a)(vii~~Paragraph 8(a)(vii) of Article Sixth of the ~~Articles Supplementary~~Charter. The Auction Agent shall be entitled to rely on the last Applicable Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Applicable Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of for each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders~~, such list~~, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (fii) In the event of any partial redemption of any ~~series of~~ Series F AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent shall promptly ~~shall~~ request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such ~~redemption~~redemption and, ~~and~~ at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, ; provided ~~that~~ the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as ~~having ownership~~ the beneficial owner of the number of shares of ~~such series of~~ the Series F AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the beneficial ownership of shares of ~~a series of~~ the Series F AMPS from an Existing Holder to another ~~Existing Holder, or to another~~ Person ~~if permitted by the Company,~~ only if (A) such transfer is ~~made~~ pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified ~~of such transfer~~ in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing ~~Holder or by~~ Holder, the Agent Member of such Existing Holder, or the Broker-Dealer of such Existing Holder of such transfer. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in ~~writing,~~ writing in a notice substantially in the form of Exhibit D to the Broker-Dealer ~~Agreement,~~ Agreement by the Agent Member or the Broker-Dealer of any Person that (i1) purchased any shares of AMPS and the seller failed to deliver such shares or (ii2) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are ~~Beneficial Owners~~ Existing Holders of shares of ~~any series~~ AMPS and the aggregate principal amount of ~~AMPS~~shares of AMPS held by such Existing Holders. ~~The~~ Except as provided in Section 2.7 hereof, the Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure~~ unlawful. Notwithstanding the above, and as necessary to ~~do so would expose~~ comply with applicable securities laws, either the Auction Agent or the Company may disclose to ~~loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory~~ anyone any information with respect to itthe United States federal income tax treatment and tax structure of this arrangement.

Appears in 1 contract

Samples: Auction Agent Agreement (Aberdeen Asia Pacific Income Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the ~~notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures~~notice, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference~~ `AA' Financial Composite Commercial Paper Rate or the Treasury Index Rate, as the case may be, and the Maximum ~~Applicable~~ Rate. If the `AA' Financial Composite Commercial Paper Rate or the Treasury Index Rate, as the case may be, is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an `interest equivalent', or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Fund as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers of the ~~Reference~~ `AA' Financial Composite Commercial Paper Rate or the Treasury Index Rate, as the case may be, so determined and of the Maximum ~~Applicable~~ Rate. (iii) If the ~~Reference~~ `AA' Financial Composite Commercial Paper Rate ~~is the applicable LIBOR Rate and such rate~~ is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ `AA' Financial Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C B to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D C to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (Scudder Rreef Real Estate Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase APS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (c) The Applicable Percentage and the Applicable Spread on the date of the Agreement are those rates as determined by the Fund and provided to the Auction Agent on the date even herewith and are 125% and 125 basis points, respectively. If there is any change in the credit rating of APS by the rating agency (or substitute or successor rating agencies) referred to in the definition of "Applicable Percentage" and "Applicable Spread" resulting in any change in the Applicable Percentage or Applicable Spread for APS after the date given herewith, the Fund shall notify the Auction Agent in writing of such change in the Applicable Percentage or Applicable Spread prior to 12:00 Noon on the Business Day prior to the next Auction Date for any series of APS succeeding such change. In determining the Maximum Rate for any series of APS on any Auction Date as set forth in 2.5(a)(i) hereof, the Auction Agent shall be entitled to rely on the last Applicable Percentage and Applicable Spread for APS of which it has most recently received notice from the Fund (or, in the absence of such notice, the percentage or spread determined by reference to the definition of Applicable Percentage and Applicable Spread, respectively). (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If any Treasury Index Rate is not quoted on an interest or bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is ~~not~~ quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis, the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any LIBOR Rate is to be determined by reference to Moneyline's Telerate Page 3750 or by rate quotations provided by LIBOR Dealer(s), as the ~~applicable~~ case may be, and Moneyline's Telerate Page 3750 is unavailable or the LIBOR ~~Rate and~~ Dealer(s) fail to provide rate quotations, as the case may be (as described in the Articles Supplementary), then the Auction Agent shall immediately notify the Fund so that the Fund can determine whether to select a Substitute LIBOR Dealer(s) to provide such rate quotation(s) not being supplied. (iii) If any Treasury Index Rate is to be based on rates supplied by ~~LIBOR~~ U.S. Government Securities Dealers and one or more of the ~~LIBOR~~ U.S. Government Securities Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such Treasury Index Rate, the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealer or ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ U.S. Government Securities Dealer or ~~LIBOR~~ U.S. Government Securities Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ APS based upon information provided to it by Broker-Dealers for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~APS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ APS to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~APS, upon notice in writing by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent in writing of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ APS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ APS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ APS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C A-3 to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day next preceding the ~~applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ APS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D A-4 to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ APS and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ APS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent may, but shall not be ~~obligated~~obligated to, to request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~APS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company~~Fund; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel that its failure to do so would be unlawful or (~~iii~~c) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Cohen & Steers Worldwide Realty Income Fund, Inc.)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be ~~changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures~~changed, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4(b) of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than ~~9:30 A.M.~~ 10:30 a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ Tortoise Auction Preferred Shares (the “Tortoise Auction Preferred Shares Register”) for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~Tortoise Auction Preferred Shares. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities of~~ Tortoise Auction Preferred Shares Register; provided, that the ~~Existing Holders, such list, the results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ may request the Broker-Dealer to provide a list of ~~any Existing Holder with respect~~ its customers if in its sole discretion it determines to ~~such Existing Holder's transfer~~ do so. The Auction Agent may conclusively rely upon the information furnished to the Auction Agent by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~Tortoise Auction Preferred Shares, upon notice by the Company to the Auction Agent of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be given to the Holders of the Tortoise Auction Preferred Shares to be redeemed), the Auction Agent ~~promptly~~ shall at least three (3) Business Days prior to the date of redemption request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~Tortoise Auction Preferred Shares) from the accounts of which ~~shares~~ Tortoise Auction Preferred Shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the ~~Auction preceding the~~ date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each ~~Agent Member~~ Broker-Dealer so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Tortoise Auction Preferred Shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Tortoise Auction Preferred Shares of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such ~~Agent Member~~ Broker-Dealer from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Tortoise Auction Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Tortoise Auction Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Tortoise Auction Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Tortoise Auction Preferred Shares and the seller failed to deliver such ~~shares~~ Tortoise Auction Preferred Shares or (ii) sold any ~~shares of AMPS~~ Tortoise Auction Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~Tortoise Auction Preferred Shares. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Tortoise Auction Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel in writing that its failure to do so would be unlawful or (~~iii~~c) it is advised by its counsel in writing that failure to do so ~~would~~ could expose the Auction Agent to loss, liability, ~~claim,~~ claim or damage ~~or expense~~ for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Infrastructure Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a1) Pursuant to Section 2.5 hereof, the Trust shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Trust shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of ~~AMPS~~APS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Trust shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Trust shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b2) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement ~~Procedures~~Procedures [TO BE PROVIDED], the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c3) The provisions contained in ~~paragraph 2~~ Part I, Section 4 of Article VII of the ~~Articles Supplementary~~ Amended By-laws concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Trust and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum ~~Applicable~~ Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Section 1 of the Amended By-laws; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Trust as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Trust and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Financial Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Financial Composite Commercial Paper Rate, such rate shall be determined on the basis of the quotations (or quotation) furnished by the remaining Commercial Paper Dealers (or Dealer), if any, or, if there are no such Commercial Paper Dealers, by the Auction Agent. The Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Trust in the event that any of the Commercial Paper Dealers and their respective Affiliates or successors shall cease to quote rates for commercial paper of issuers of the sort described in Article VII, Part II, Section 19 of the Amended By-laws so that the ~~Company~~ Trust can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Trust promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Trust does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of ~~AMPS~~ APS by ~~either of the rating agencies~~ Moody's (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary~~agencies), thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the ~~AMPS~~APS, as set forth in ~~said~~ the definition of Maximum Rate (the "~~Percentage or Spread~~Percentage"), the ~~Company~~ Trust shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for ~~AMPS~~ APS next succeeding such change. The Percentage for the ~~AMPS~~ APS on the date of this Agreement is ~~as specified in paragraph 10(a)(vii) of the Articles Supplementary~~[___%]. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the ~~Company~~ Trust (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum ~~Applicable~~ Rate as set forth in Part I, Section ~~2.2(d)(i~~2.2(c)(i) ~~hereof~~of Article VII of the Amended By-laws. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of ~~AMPS~~ APS for purposes of each Auction. The ~~Company~~ Trust shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~APS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of ~~AMPS~~ APS to another Person. (fii) In the event of any partial redemption of any series of ~~AMPS~~APS, upon notice by the ~~Company~~ Trust to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of ~~such~~ the applicable series of ~~AMPS~~ APS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Trust, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of ~~AMPS~~ APS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of ~~AMPS~~ APS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Trust, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of ~~AMPS~~ a series of APS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of ~~AMPS~~ a series of APS and the seller failed to deliver such shares or (ii) sold any shares of ~~AMPS~~ a series of APS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g6) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of AMPS~~APS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Trust, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agent Agreement (Eaton Vance Senior Income Trust)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the ~~notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures~~notice, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference~~ `AA' Financial Composite Commercial Paper Rate or the Treasury Index Rate, as the case may be, and the Maximum ~~Applicable~~ Rate. If the `AA' Financial Composite Commercial Paper Rate or the Treasury Index Rate, as the case may be, is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an `interest equivalent', or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Fund as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers of the ~~Reference~~ 'AA' Financial Composite Commercial Paper Rate or the Treasury Index Rate, as the case may be, so determined and of the Maximum ~~Applicable~~ Rate. (ii) If the ~~Reference~~ 'AA' Financial Composite Commercial Paper Rate ~~is the applicable LIBOR Rate and such rate~~ is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ 'AA' Financial Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C B to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D C to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (Scudder Rreef Real Estate Fund Ii Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without prior written approval of the ~~date hereof~~Auction Agent (which approval shall not be unreasonably withheld). At the time of the closing of the initial issuance and sale of the AMPS (the "Closing"), the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and ~~accurate~~ accurate, and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than ~~five Business Days~~ seven days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) ~~The provisions contained~~ With respect to each Dividend Period that is a Special Dividend Period, the Company may, at its sole option and to the extent permitted by law, by telephonic and written notice (a "Request for a Special Dividend Period") to the Auction Agent and to each Broker-Dealer, request that the next succeeding Dividend Period for a series of AMPS will be a number of days (other than the number of days in ~~paragraph 2~~ the applicable Regular Dividend Period), evenly divisible by seven, and not fewer than seven nor more than 364 in the case of a Short Term Dividend Period or a number of whole years not greater than five years in the case of a Long Term Dividend Period, specified in such notice, provided that for any Auction occurring after the initial Auction, the Company may not give a Request for a Special Dividend Period (and any such request shall be null and void) unless the Company has received written confirmation from Xxxxx'x and S&P that such action would not impair the rating then assigned to the AMPS by Xxxxx'x and S&P and unless sufficient Clearing Bids were made in the last occurring Auction and unless full cumulative dividends and any amounts due with respect to redemptions payable prior to such date have been paid in full. Such Request for a Special Dividend Period, in the case of a Short Term Dividend Period, shall be given on or prior to the fourth day but not more than seven days prior to an Auction Date for the AMPS and, in the case of a Long Term Dividend Period, shall be given on or prior to the 14th day but not more than 28 days prior to the Auction Date for the AMPS. Upon receiving such Request for a Special Dividend Period, the Broker-Dealers(s) shall jointly determine whether given the factors set forth in Paragraph 3(c)(iii) of Article Sixth of the ~~Articles Supplementary concerning~~ Charter it is advisable that the Company issue a Notice of Special Dividend Period for the AMPS as contemplated by such Request for a Special Dividend Period and the Optional Redemption Price of the AMPS during such Special Dividend Period and the Specific Redemption Provisions and shall give the Company and the Auction Agent written notice (a "Response") of such determination by no later than the third day prior to such Auction Date. In making such determination the Broker-Dealer(s) will consider (i) existing short-term and long-term market rates and indices of such short-term and long-term rates, (ii) existing market supply and demand for short-term and long-term securities, (iii) existing yield curves for short-term and long-term securities comparable to the AMPS, (iv) industry and financial conditions which may affect the AMPS, (v) the investment objective of the Company, and (vi) the Dividend Periods and dividend rates at which current and potential beneficial holders of the ~~notification~~ AMPS would remain or become beneficial holders. If the Broker-Dealer(s) shall not give the Company and the Auction Agent a Response by such third day or if the Response states that given the factors referred to above it is not advisable that the Company give a Notice of a Special Dividend Period ~~will be followed by~~ (as defined below) for the AMPS, the Company ~~and~~may not give a Notice of a Special Dividend Period in respect of such Request for a Special Dividend Period. In the event the Response indicates that it is advisable that the Company give a Notice of Special Dividend Period for the AMPS, the Company may by no later than the second day prior to ~~the extent applicable,~~ such Auction Date give a notice (a "Notice of a Special Dividend Period") to the Auction Agent, the Securities Depository and each Broker-Dealer, which notice will specify (i) the duration of the Special Dividend Period, (ii) the Optional Redemption Price as specified in the related Response, and (iii) the Specific Redemption Provisions, if any, as specified in the related Response. The Company shall not give a Notice of a Special Dividend Period, or, if such Notice of a Special Dividend Period shall have already been given, shall give telephonic and written notice (a "Notice of Revocation") to the Auction Agent, each Broker-Dealer, and the ~~provisions contained therein are incorporated herein by reference~~ Securities Depository on or prior to the Business Day prior to the relevant Auction Date if (x) either the 1940 Act AMPS Coverage is not satisfied or the Company shall fail to maintain the AMPS Basic Maintenance Amount on each of the two Valuation Dates immediately preceding the Business Day prior to the relevant Auction Date on an actual basis and on a pro forma basis giving effect to the proposed Special Dividend Period (using as a pro forma dividend rate with respect to such Special Dividend Period the dividend rate which the Broker-Dealers shall advise the Company is an approximately equal rate for securities similar to the AMPS with an equal dividend period), provided that in ~~their entirety and~~ calculating the aggregate Discounted Value of Eligible Portfolio Property, the Xxxxx'x exposure period shall be deemed to be one week longer than the period utilized to produce the discount factors assigned by Xxxxx'x under the definition of Discount Factors found in Paragraph 1(a) of Article Sixth of the Charter, (y) sufficient funds for the payment of dividends payable on the immediately succeeding Dividend Payment Date have not been irrevocably deposited with the Auction Agent by the close of business on the third Business Day preceding the related Auction Date, or (z) the Broker-Dealer(s) jointly advise the Company that after consideration of the factors referred to above they have concluded that it is advisable to give a ~~part~~ Notice of ~~this Agreement~~ Revocation. If the Company is prohibited from giving a Notice of a Special Dividend Period as a result of the factors enumerated in clause (x), (y), or (z) of the preceding sentence or if the Company gives a Notice of Revocation with respect to a Notice of a Special Dividend Period, the ~~same extent as if~~ next succeeding Dividend Period will be a Regular Dividend Period. In addition, in the event sufficient Clearing Bids are not made in any Auction or such ~~provisions were set forth fully herein~~Auction is not held for any reason, the next succeeding Dividend Period will be a Regular Dividend Period and the Company may not again give a Notice of a Special Dividend Period (and any such attempted notice shall be null and void) until sufficient Clearing Bids have been made in an Auction with respect to a Regular Dividend Period. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Paragraph 1 of Article Sixth of the Charter; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction ~~Date~~Date for each series of AMPS, the Auction Agent shall notify the Company and the Broker-Dealers by telephone of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ shall immediately notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company shall promptly ~~shall~~ advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Applicable Percentage"), the Company shall notify the Auction Agent in writing of such change in the Applicable Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Applicable Percentage for the AMPS on the date of this Agreement is as specified in ~~paragraph 10(a)(vii~~Paragraph 8(a)(vii) of Article Sixth of the ~~Articles Supplementary~~Charter. The Auction Agent shall be entitled to rely on the last Applicable Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Applicable Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of for each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders~~, such list~~, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (fii) In the event of any partial redemption of any ~~series of~~ Series D AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent shall promptly ~~shall~~ request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such ~~redemption~~redemption and, ~~and~~ at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, ; provided ~~that~~ the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as ~~having ownership~~ the beneficial owner of the number of shares of ~~such series of~~ the Series D AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the beneficial ownership of shares of ~~a series of~~ the Series D AMPS from an Existing Holder to another ~~Existing Holder, or to another~~ Person ~~if permitted by the Company,~~ only if (A) such transfer is ~~made~~ pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified ~~of such transfer~~ in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing ~~Holder or by~~ Holder, the Agent Member of such Existing Holder, or the Broker-Dealer of such Existing Holder of such transfer. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in ~~writing,~~ writing in a notice substantially in the form of Exhibit D to the Broker-Dealer ~~Agreement,~~ Agreement by the Agent Member or the Broker-Dealer of any Person that (i1) purchased any shares of AMPS and the seller failed to deliver such shares or (ii2) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are ~~Beneficial Owners~~ Existing Holders of shares of ~~any series~~ AMPS and the aggregate principal amount of ~~AMPS~~shares of AMPS held by such Existing Holders. ~~The~~ Except as provided in Section 2.7 hereof, the Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure~~ unlawful. Notwithstanding the above, and as necessary to ~~do so would expose~~ comply with applicable securities laws, either the Auction Agent or the Company may disclose to ~~loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory~~ anyone any information with respect to itthe United States federal income tax treatment and tax structure of this arrangement.

Appears in 1 contract

Samples: Auction Agent Agreement (Aberdeen Asia Pacific Income Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 11.2 of the ~~Articles Supplementary~~ Second Amended and Restated Bylaws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers ~~of the Reference Rate so determined and~~ of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of~~ AMPS who are Broker-Dealers for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders ~~of each series~~ of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's ’s transfer of any ~~shares of~~ AMPS to another Person. (fii) In the event of any partial redemption of ~~any series of~~ AMPS, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of~~ AMPS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of~~ AMPS shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership ~~of shares of a series~~ of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by ~~3:00 P.M. on~~ 12:00 noon of the ~~Business Day next preceding the applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of~~ AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of~~ AMPS and the seller failed to deliver such shares or (ii) sold any ~~shares of~~ AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer ~~Agreements~~Agreement, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares~~ AMPS based upon inquiries of ~~any series~~ those persons such Broker-Dealers reasonably believe are Beneficial Owners as of ~~AMPS~~the most recent Auction. The Auction Agent shall keep confidential any such information and any such registry and shall not disclose any such information so provided to any Person other than the ~~relevant~~ Broker-Dealer that provided such information and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (Pimco Corporate & Income Opportunity Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be ~~changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures~~changed, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4(b) of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (id) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ MMP Shares (the "MMP Shares Register") for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~MMP Shares. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities of~~ MMP Shares Register; provided, that the ~~Existing Holders, such list, the results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ may request the Broker-Dealer to provide a list of ~~any Existing Holder with respect~~ its customers if in its sole discretion it determines to ~~such Existing Holder's transfer~~ do so. The Auction Agent may conclusively rely upon the information furnished to the Auction Agent by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~MMP Shares, upon notice by the Company to the Auction Agent of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be given to the Holders of the MMP shares to be redeemed), the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~MMP Shares) from the accounts of which ~~shares~~ MMP Shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the ~~Auction preceding the~~ date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ MMP Shares are to be redeemed) the number of ~~shares of such series of AMPS~~ MMP Shares of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ MMP Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ MMP Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ MMP Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ MMP Shares and the seller failed to deliver such ~~shares~~ MMP Shares or (ii) sold any ~~shares of AMPS~~ MMP Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~MMP Shares. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~MMP Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel in writing that its failure to do so would be unlawful or (~~iii~~c) it is advised by its counsel that failure to do so ~~would~~ could expose the Auction Agent to loss, liability, ~~claim,~~ claim or damage ~~or expense~~ for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Capital Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. ` (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the Company shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agent Agreement (Preferred Income Strategies Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Fund shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing ~~shares of~~ AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a ~~Broker-~~Broker- Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 - of the ~~Articles Supplementary~~ Certificate of Designation concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in paragraph ____ of the Certificate of Designation, whenever the Fund intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on AMPS, the Fund will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Fund, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Fund includes any additional amounts in a dividend as provided in paragraph ____ of the Certificate of Designation, the Fund will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Fund, in turn it will notify the Securities Depository and each Broker-Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Fund makes a Retroactive Taxable Allocation, the Fund, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the share books of the Fund. The Fund, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph __ of the Certificate of Designation; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Fund as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the ~~Company~~ Fund shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph ~~10(a)(vii)~~ _____ of the ~~Articles Supplementary~~Certificate of Designation. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the ~~Company~~ Fund (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The ~~Company~~ Fund shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the ~~Broker-~~Broker- Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the ~~Broker-~~Broker- Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of~~ AMPS to another Person. (fii) In the event of any partial redemption of any series of AMPS, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of~~ AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of~~ AMPS and the seller failed to deliver such shares or (ii) sold any ~~shares of~~ AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such ~~Broker-~~Broker- Dealers believe are Beneficial Owners ~~of shares of any series~~ of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agent Agreement (Muniholdings Florida Insured Fund Iv)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Fund shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing ~~shares of~~ AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a ~~Broker-~~Broker- Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 _____ of the ~~Articles Supplementary~~ Certificate of Designation concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in paragraph _____ of the Certificate of Designation, whenever the Fund intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on AMPS, the Fund will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Fund, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Fund includes any additional amounts in a dividend as provided in paragraph _____ of the Certificate of Designation, the Fund will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Fund, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Fund makes a Retroactive Taxable Allocation, the Fund, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the share books of the Fund. The Fund, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph _____ of the Certificate of Designation; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Fund as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the ~~Broker-~~Broker- Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the ~~Company~~ Fund shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph ~~10(a)(vii)~~ ______ of the ~~Articles Supplementary~~Certificate of Designation. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the ~~Company~~ Fund (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The ~~Company~~ Fund shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of~~ AMPS to another Person. (fii) In the event of any partial redemption of any series of AMPS, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of~~ AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of~~ AMPS and the seller failed to deliver such shares or (ii) sold any ~~shares of~~ AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of~~ AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agent Agreement (Muniholdings Florida Insured Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Fund shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing ~~shares of~~ AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agent Agreement (Muniholdings Florida Insured Fund V)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the ~~Broker-~~Broker- Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (d) Except as otherwise provided in paragraph 2(f) of the Articles Supplementary, whenever the Company intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of AMPS, the Company will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Company, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Company includes any additional amounts in a dividend as provided in paragraph 2(f) of the Articles Supplementary, the Company will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Company, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (i) If the Company makes a Retroactive Taxable Allocation, the Company, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the stock books of the Company. The Company, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (e) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph 1 of the Articles Supplementary; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (~~iii~~ii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the Company shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (ef) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (fi) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of AMPS shown in the Auction Agent's registry of Existing Holders. (iii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.the

Appears in 1 contract

Samples: Auction Agent Agreement (Muniholdings California Insured Fund v Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As Not later than seven days prior to the first Auction Date for any series of ~~the date hereof~~Preferred Shares, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent (with respect to each Broker-Dealer on such list) for execution by the Auction Agent a Broker-Dealer Agreement signed by ~~each such~~ the Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 3 of Part I of the ~~Articles Supplementary~~ Statement of Preferences concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If any AA Composite Commercial Paper Rate, Treasury Index Rate or Reference Rate, as the ~~rate obtained by the Auction Agent~~ case may be, is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Statement of Preferences if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any AA Composite Commercial Paper Rate ~~is the applicable LIBOR Rate and such rate~~ is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such AA Composite Commercial Paper Rate, the Auction Agent shall promptly ~~shall~~ notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund shall promptly advise the Auction Agent of any such selection. (iii) If any Treasury Index Rate or Treasury Xxxx Rate is to be based on rates supplied by U.S. Government Securities Dealers and one or more of the U.S. Government Securities Dealers shall not provide a quotation for the determination of such Treasury Index Rate, the Auction Agent shall promptly notify the Fund so that the Fund can determine whether to select a substitute U.S. Government Securities Dealer or substitute U.S. Government Securities Dealers to provide the quotation or quotations not being supplied by any U.S. Government Securities Dealer or U.S. Government Securities Dealers. The Fund shall promptly advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in ~~the prevailing~~ any rating of ~~AMPS by either~~ the Preferred Shares which would affect the manner in which the Auction Agent computes any of the ~~rating agencies (or Substitute Rating Agency or successor rating agency) referred to~~ rates mentioned in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread")this Section 2.2, the ~~Company~~ Fund shall promptly notify the Auction Agent ~~in writing~~ of such ~~change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such~~ change~~. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii)~~ , and of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereofnew rating. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares based upon information provided to it by Broker-Dealers for purposes of each Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of any series of ~~AMPS~~Preferred Shares, upon notice in writing by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent in writing of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction for such series and preceding the date of redemption ~~with respect to shares of~~ for such ~~series of AMPS being partially redeemed~~series, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders of such series whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing ~~Holder~~Holder of such series, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares~~ Preferred Shares of such series ~~of AMPS~~ shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares~~ Preferred Shares of a any series ~~of AMPS~~ from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C B to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder.~~ Holder and such transfer is made to a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Fund or other persons as the Fund permits.. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ immediately preceding the ~~applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D C to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (ge) The Auction Agent may, but shall not be ~~obligated~~obligated to, to request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company~~Fund; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel that its failure to do so would be unlawful or (~~iii~~c) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Franklin Templeton Limited Duration Income Trust)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a1) Pursuant to Section 2.5 hereof, the Trust shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Trust shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of ~~AMPS~~APS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Trust shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Trust shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b2) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c3) The provisions contained in ~~paragraph~~ Section 2 of Article VII of the ~~Articles Supplementary~~ Amended By-laws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Trust and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in Sections 2(e) and 2(f) of Article VII of the Amended By-laws, whenever the Trust intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of APS, the Trust will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. (ii) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Section 1 of the Amended By-laws; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Trust as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Trust and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Financial Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Financial Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Trust so that the ~~Company~~ Trust can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Trust promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Trust does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (~~iii~~ii) If, after the date of this Agreement, there is any change in the prevailing rating of ~~AMPS~~ APS by ~~either of the rating agencies~~ Fitch Ratings and Xxxxx'x Investors Service, Inc. (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary~~agencies), thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the ~~AMPS~~APS, as set forth in ~~said~~ the definition of Maximum Application Rate (the "~~Percentage or Spread~~Percentage"), the ~~Company~~ Trust shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for ~~AMPS~~ APS next succeeding such change. The Percentage for the ~~AMPS~~ APS on the date of this Agreement is ~~as specified in paragraph 10(a)(vii) of the Articles Supplementary~~125%. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the ~~Company~~ Trust (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (eiii) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of ~~AMPS~~ APS for purposes of each Auction. The ~~Company~~ Trust shall use its best efforts to provide or cause to be provided to the Auction Agent ~~within ten Business Days following~~ on the date of the Closing a list of the initial Existing Holders of each series of ~~AMPS~~APS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the ~~Broker-~~Broker- Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of ~~AMPS~~ APS to another Person. (fiv) In the event of any partial redemption of any series of ~~AMPS~~APS, upon notice by the ~~Company~~ Trust to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of ~~AMPS~~ APS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Trust, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of ~~AMPS~~ APS shown in the Auction Agent's registry of Existing Holders. (iv) The Auction Agent shall register a transfer of the ownership of shares of a series of ~~AMPS~~ APS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Trust, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of ~~AMPS~~ APS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of ~~AMPS~~ APS and the seller failed to deliver such shares or (ii) sold any shares of ~~AMPS~~ APS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gvi) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of AMPS~~APS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Trust, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agent Agreement (Eaton Vance Floating-Rate Income Trust)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If ~~the rate obtained by the Auction Agent~~ any Treasury Index Rate is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any LIBOR Rate is to be determined by reference to Telerate Page 3750 or by rate quotations provided by LIBOR Dealer(s), as the ~~applicable~~ case may be, and Telerate Page 3750 is unavailable or the LIBOR ~~Rate and~~ Dealer(s) fail to provide rate quotations, as the case may be (as described in the Articles Supplementary), then the Auction Agent shall immediately notify the Fund so that the Fund can determine whether to select a Substitute LIBOR Dealer(s) to provide such rate quotation(s) not being supplied. (iii) If any Treasury Index Rate is to be based on rates supplied by ~~LIBOR~~ U.S. Government Securities Dealers and one or more of the ~~LIBOR~~ U.S. Government Securities Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such Treasury Index Rate, the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealer or ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.quotation

Appears in 1 contract

Samples: Auction Agency Agreement (Cohen & Steers Reit & Utility Income Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a ~~Broker-~~Broker- Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. In the case of any conflict between the terms of any document incorporated herein by reference and the terms hereof, the Auction Agent shall not be liable for its actions or inaction in accordance with the terms of this Agreement. (c) The current Applicable Percentage is 125%. In the event that the credit rating of the Preferred Shares changes in a way that results in a change in the Applicable Percentage, the Fund shall send prompt notice of such change to the Auction Agent. In the absence of its actual receipt of any such notice, the Auction Agent is authorized to apply, and shall be fully protected in applying, the Applicable Percentage last communicated to it by the Fund in a notice or set forth above in this paragraph. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If any LIBOR Rate, Treasury Index Rate, Treasury Note Rate or Reference Rate, as the ~~rate obtained by the Auction Agent~~ case may be, is not quoted on an interest ~~or discount~~ equivalent basis, the Auction Agent shall convert the quoted rate to the interest equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference Rate is the applicable~~ any LIBOR Rate ~~and such rate~~ is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of ~~the applicable~~ such LIBOR Rate, the Auction Agent shall promptly ~~shall~~ notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute~~ substitute LIBOR Dealer or ~~Substitute~~ substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) ~~If, after the date of this Agreement, there~~ If any Treasury Index Rate or Treasury Note Rate is ~~any change in the prevailing rating of AMPS~~ to be based on rates supplied by ~~either~~ U.S. Government Securities Dealers and one or more of the ~~rating agencies (~~U.S. Government Securities Dealers shall not provide a quotation or ~~Substitute Rating Agency or successor rating agency) referred to in~~ the ~~definition~~ determination of ~~the Maximum Applicable~~ such Treasury Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent ~~in writing of such change in~~ shall promptly notify the ~~Percentage~~ Fund so that the Fund can determine whether to select a substitute U.S. Government Securities Dealer or ~~Spread prior~~ substitute U.S. Government Securities Dealers to ~~9:00 A.M. on~~ provide the quotation or quotations not being supplied by any U.S. Government Securities Dealer or U.S. Government Securities Dealers. The Fund shall promptly advise the Auction ~~Date for AMPS next succeeding~~ Agent of any such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereofselection. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares based upon information provided to it by Broker-Dealers for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and written notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice in writing by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent in writing of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C B to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day next preceding the ~~applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D C to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent may, but shall not be ~~obligated~~obligated to, to request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company~~Fund; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel that its failure to do so would be unlawful or (~~iii~~c) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Neuberger Berman Real Estate Securities Income Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate and shall indicate ~~thereon, or on a separate list,~~ thereon the identity of each Existing Holder, if any, whose most recent Order was submitted ~~by a Broker-Dealer on such list~~ and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Part I of the ~~Articles Supplementary~~ Statement concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (c) The current Applicable Percentage is 150%. In the event that the credit rating of the Preferred Shares changes in a way that results in a change in the Applicable Percentage, the Fund shall send prompt notice of such change to the Auction Agent. In the absence of its actual receipt of any such notice, the Auction Agent is authorized to apply, and shall be fully protected in applying, the Applicable Percentage last communicated to it by the Fund in a notice or set forth above in this paragraph. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ distribution rate and the Maximum ~~Applicable~~ Rate. If any LIBOR Rate, Treasury Index Rate, Treasury Note Rate or Reference Rate, as the ~~rate obtained by the Auction Agent~~ case may be, is not quoted on an interest ~~or discount~~ equivalent basis, the Auction Agent shall convert the quoted rate to the interest equivalent thereof as set forth in the definition of such rate in the Statement if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference Rate is the applicable~~ any LIBOR Rate ~~and such rate~~ is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of ~~the applicable~~ such LIBOR Rate, the Auction Agent shall promptly ~~shall~~ notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute~~ substitute LIBOR Dealer or ~~Substitute~~ substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) ~~If, after the date of this Agreement, there~~ If any Treasury Index Rate or Treasury Note Rate is ~~any change in the prevailing rating of AMPS~~ to be based on rates supplied by ~~either~~ U.S. Government Securities Dealers and one or more of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread U.S. Government Securities Dealers shall not provide a quotation for the ~~AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing~~ determination of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemedTreasury Rate, the Auction Agent shall ~~request each Agent Member~~ promptly notify the Fund so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the ~~Auction Agent has been furnished with the name and telephone number of~~ Fund can determine whether to select a ~~person~~ substitute U.S. Government Securities Dealer or ~~department at such Agent Member from which it is~~ substitute U.S. Government Securities Dealers to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the ~~Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of~~ quotation or quotations not being supplied by any ~~series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-~~U.S. Government Securities Dealer ~~and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction~~ or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.U.S.

Appears in 1 contract

Samples: Auction Agency Agreement (First Trust Tax-Advantaged Preferred Income Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Fund shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing ~~shares of~~ AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a ~~Broker-~~Broker- Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 __ of the ~~Articles Supplementary~~ Certificate of Designation concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in paragraph ___ of the Certificate of Designation, whenever the Fund intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on AMPS, the Fund will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Fund, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Fund includes any additional amounts in a dividend as provided in paragraph ____ of the Certificate of Designation, the Fund will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Fund, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Fund makes a Retroactive Taxable Allocation, the Fund, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the share books of the Fund. The Fund, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph __ of the Certificate of Designation; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Fund as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the ~~Company~~ Fund shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph ~~10(a)(vii)~~ _____ of the ~~Articles Supplementary~~Certificate of Designation. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the ~~Company~~ Fund (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The ~~Company~~ Fund shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of~~ AMPS to another Person. (fii) In the event of any partial redemption of any series of AMPS, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of~~ AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of~~ AMPS and the seller failed to deliver such shares or (ii) sold any ~~shares of~~ AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such ~~Broker-~~Broker- Dealers believe are Beneficial Owners ~~of shares of any series~~ of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agent Agreement (Muniholdings Pennsylvania Insured Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a ~~Broker-~~Broker Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. ~~Not later than five Business Days prior~~ Prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in ~~clause~~ paragraph (~~vii~~g) of ~~Paragraph (a)~~ Section 1 of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 3 of Part I of the ~~Articles Supplementary~~ Statement concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference~~ Maximum Rate and the ~~Maximum Applicable~~ Reference Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers of the Maximum Rate and the Reference ~~Rate so determined~~ Rate. On the date hereof, the applicable percentage is 125%, the applicable spread is 0.125% and the rating for each series of ~~the Maximum Applicable Rate.~~Preferred Shares is as follows: AAA by Fitch Rating and Aaa by Xxxxx'x Investors Service, Inc. (ii) If the Reference Rate is the ~~applicable~~ LIBOR Rate and such rate is to be ~~based on rates supplied~~ determined by reference to Telerate Page 3750 or by rate quotations provided by LIBOR ~~Dealers~~ Dealers, as the case may be, and ~~one~~ Telerate Page 3750 is unavailable or ~~more of~~ the LIBOR ~~Dealers shall not~~ Dealer(s) fail to provide ~~a quotation for~~ rate quotations, as the ~~determination of~~ case may be (as described in the ~~applicable LIBOR Rate~~Statement), then the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute~~ substitute LIBOR Dealer or ~~Substitute~~ substitute LIBOR Dealers to provide ~~the~~ such rate quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute~~ substitute LIBOR Dealer or ~~Substitute~~ substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers, if any, or, if there are no such LIBOR Dealers, by the Auction Agent pursuant to the Statement. (iii) ~~If, after~~ If the ~~date of this Agreement, there~~ Reference Rate is ~~any change in~~ the ~~prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable~~ Treasury Index Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of then such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent rate shall be ~~entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread~~ determined based upon data set forth in the most recent weekly statistical release published by the Board of Governors of the Federal Reserve System (currently H.15(519)), provided, however, if the most recent such statistical release shall not have been published during the 15 days preceding ~~sentence)~~ the date of computation, then the foregoing computations shall be based upon the average of comparable data as quoted to the Fund by at least three U.S. Government Securities Dealers (as described in ~~determining~~ the ~~Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof~~Statement). (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares for purposes of each individual Auction. The ~~Company~~ Auction Agent shall ~~use its best efforts~~ keep such registry current and accurate and shall indicate thereon, or on a separate list, the identity of the respective Broker-Dealer of each Existing Holder, if any, on whose behalf such Broker-Dealer submitted the most recent Order in any Auction which resulted in such Existing Holder continuing to hold or purchase Preferred Shares. The Fund shall provide or cause to be provided to the Auction Agent ~~within ten Business Days following~~ at or prior to the ~~date~~ Date of Original Issue of the ~~Closing~~ Preferred Shares of each series a list of the initial Existing Holders of the shares of each such series of ~~AMPS~~Preferred Shares, the number of shares purchased by each such Existing Holder and the respective Broker-Dealer of each such Existing Holder or the affiliate thereof through which each such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by ~~3:00 P.M. on~~ 12:00 noon of the ~~Business Day next preceding the applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (Evergreen Utilities & High Income Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in ~~clause (vii) of Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 2.04 of the ~~Articles Supplementary~~ Supplemental Indenture concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ Tortoise Notes (the "Tortoise Note Register") for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~Tortoise Notes. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities~~ Tortoise Note Register; provided, that the Auction Agent may request the Broker Dealer to provide a list of its customers if in its sole discretion it determines to do so. The Auction Agent may conclusively rely upon the ~~Existing Holders, such list,~~ information furnished to the ~~results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~Tortoise Notes, upon notice by the Company to the Auction Agent of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be mailed to the Holders of Tortoise Notes to be redeemed), the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~Tortoise Notes) from the accounts of which ~~shares~~ Tortoise Notes have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Tortoise Notes are to be redeemed) the number of ~~shares of such series of AMPS~~ Tortoise Notes of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Tortoise Notes shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Tortoise Notes from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Tortoise Notes if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Tortoise Notes and the seller failed to deliver such ~~shares~~ Tortoise Notes or (ii) sold any ~~shares of AMPS~~ Tortoise Notes and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~Tortoise Notes. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Tortoise Notes. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel in writing that its failure to do so would be unlawful, or (c) it is advised by its counsel that ~~its~~ failure to do so ~~would be unlawful or (iii) failure to do so would~~ could expose the Auction Agent to ~~loss,~~ loss liability, ~~claim,~~ claim or damage ~~or expense~~ for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Infrastructure Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate and shall indicate ~~thereon, or on a separate list,~~ thereon the identity of each Existing Holder, if any, whose most recent Order was submitted ~~by a Broker-Dealer on such list~~ and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Series ___Notes. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 2.04 of the ~~Articles Supplementary~~ [___] Supplemental Indenture concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Series ___Notes for purposes of each ~~Auction~~individual Auction based on the information provided to it from time to time by the Broker-Dealers. The Company shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS,~~ Series ___Notes and the ~~Broker-Dealer~~ number of notes purchased by each such Existing ~~Holder through which such Existing Holder purchased such shares~~Holder. The Auction Agent may rely upon, as conclusive evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing ~~Holder,~~ Holder or the Agent Member ~~of any Existing Holder or the Broker-Dealer~~ of any Existing Holder with respect to such Existing Holder's ’s transfer of any ~~shares of AMPS~~ Series ___Notes to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Series ___Notes, upon notice by the Company to the Trustee and the Auction Agent of such partial redemption, the ~~Auction Agent~~ Trustee promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~Series ___Notes) from the accounts of which ~~shares~~ Series ___Notes have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Series ___Notes are to be redeemed) the number of ~~shares of such series of AMPS~~ Series ___Notes of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Series ___Notes shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Series ___Notes from an Existing Holder to another Existing ~~Holder, or to another Person if permitted by the Company,~~ Holder only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Series ___Notes if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Series ___Notes and the seller failed to deliver such ~~shares~~ Series ___Notes or (ii) sold any ~~shares of AMPS~~ Series ___Notes and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~Series ___Notes. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Series ___Notes. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such ~~disclosure,~~ disclosure or (iib) it is advised by its counsel in writing that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (Kayne Anderson MLP Investment CO)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 _ of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in paragraph 2(f) of the Articles Supplementary, whenever the Company intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of AMPS, the Company will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Company, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Company includes any additional amounts in a dividend as provided in paragraph ____ of the Articles Supplementary, the Company will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Company, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Company makes a Retroactive Taxable Allocation, the Company, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the stock books of the Company. The Company, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph _ of the Articles Supplementary; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the ~~Broker-~~Broker- Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the Company shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph ~~10(a)(vii)~~ __________ of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (fii) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of~~ AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agent Agreement (Muniholdings Insured Fund Inc/Nj)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph 1 of the Articles Supplementary; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the Company shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agent Agreement (Preferred Income Strategies Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a1) Pursuant to Section 2.5 hereof, the Trust shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Trust shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of ~~AMPS~~APS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Trust shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Trust shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b2) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c3) The provisions contained in ~~paragraph~~ Section 2 of Article VII of the ~~Articles Supplementary~~ Amended By-laws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Trust and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in Sections 2(e) and 2(f) of Article VII of the Amended By-laws, whenever the Trust intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of APS, the Trust will notify the Auction Agent of the amount to be so included at least 5 Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Trust includes any additional amounts in a dividend as provided in Section 2(e) of Article VII of the Amended By-laws, the Trust will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify the Securities Depository and each Broker-Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in the Amended By-laws; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Trust as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Trust and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Trust so that the ~~Company~~ Trust can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Trust promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Trust does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (~~iii~~ii) If, after the date of this Agreement, there is any change in the prevailing rating of ~~AMPS~~ APS by ~~either of the rating agencies~~ Moody's or Fitch (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary~~agencies), thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the ~~AMPS~~APS, as set forth in ~~said~~ the definition of Maximum Application Rate (the "~~Percentage or Spread~~Percentage"), the ~~Company~~ Trust shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for ~~AMPS~~ APS next succeeding such change. The Percentage for the ~~AMPS~~ APS on the date of this Agreement is ~~as specified in paragraph 10(a)(vii) of the Articles Supplementary~~150%. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the ~~Company~~ Trust (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (eiii) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of ~~AMPS~~ APS for purposes of each Auction. The ~~Company~~ Trust shall use its best efforts to provide or cause to be provided to the Auction Agent within ten (10) Business Days following the date of the Closing a list of the initial Existing Holders of each series of ~~AMPS~~APS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of ~~AMPS~~ APS to another Person. (fiv) In the event of any partial redemption of any series of ~~AMPS~~APS, upon notice by the ~~Company~~ Trust to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of ~~AMPS~~ APS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Trust, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of ~~AMPS~~ APS shown in the Auction Agent's registry of Existing Holders. (iv) The Auction Agent shall register a transfer of the ownership of shares of a series of ~~AMPS~~ APS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Trust, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of ~~AMPS~~ APS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of ~~AMPS~~ APS and the seller failed to deliver such shares or (ii) sold any shares of ~~AMPS~~ APS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gvi) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.with

Appears in 1 contract

Samples: Auction Agent Agreement (Eaton Vance Limited Duration Income Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of Article X of the ~~Articles Supplementary~~ Bylaws concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. In the case of any conflict between the terms of any document incorporated herein by reference and the terms hereof, the Auction Agent shall not be liable for its actions or inaction in accordance with the terms of this Agreement. (c) The current Applicable Percentage is 150%. In the event that the credit rating of the Preferred Shares changes in a way that results in a change in the Applicable Percentage, the Fund shall send prompt notice of such change to the Auction Agent. In the absence of its actual receipt of any such notice, the Auction Agent is authorized to apply, and shall be fully protected in applying, the Applicable Percentage last communicated to it by the Fund in a notice or set forth above in this paragraph. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ distribution rate and the Maximum ~~Applicable~~ Rate. If any LIBOR Rate, Treasury Index Rate, Treasury Note Rate or Reference Rate, as the ~~rate obtained by the Auction Agent~~ case may be, is not quoted on an interest ~~or discount~~ equivalent basis, the Auction Agent shall convert the quoted rate to the interest equivalent thereof as set forth in the definition of such rate in the Bylaws if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference Rate is the applicable~~ any LIBOR Rate ~~and such rate~~ is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of ~~the applicable~~ such LIBOR Rate, the Auction Agent shall promptly ~~shall~~ notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute~~ substitute LIBOR Dealer or ~~Substitute~~ substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) ~~If, after the date of this Agreement, there~~ If any Treasury Index Rate or Treasury Note Rate is ~~any change in the prevailing rating of AMPS~~ to be based on rates supplied by ~~either~~ U.S. Government Securities Dealers and one or more of the ~~rating agencies (or Substitute Rating Agency or successor rating agency) referred to in~~ U.S. Government Securities Dealers shall not provide a quotation for the ~~definition~~ determination of ~~the Maximum Applicable~~ such Treasury Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent ~~in writing of such change in~~ shall promptly notify the ~~Percentage~~ Fund so that the Fund can determine whether to select a substitute U.S. Government Securities Dealer or ~~Spread prior~~ substitute U.S. Government Securities Dealers to ~~9:00 A.M. on~~ provide the quotation or quotations not being supplied by any U.S. Government Securities Dealer or U.S. Government Securities Dealers. The Fund shall promptly advise the Auction ~~Date for AMPS next succeeding~~ Agent of any such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereofselection. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares based upon information provided to it by Broker-Dealers for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and written notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice in writing by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent in writing of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C B to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day next preceding the ~~applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D C to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The ~~Auction Agent~~ Broker-Dealer may, but shall not be ~~obligated, to request that the Broker-Dealers~~obligated to, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company~~Fund; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel that its failure to do so would be unlawful or (~~iii~~c) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (RMR Dividend Capture Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (c) The Applicable Percentage and the Applicable Spread on the date of the Agreement are those rates as determined by the Fund and provided to the Auction Agent on the date even herewith. If there is any change in the credit rating of Preferred Shares by the rating agency (or substitute or successor rating agencies) referred to in the definition of "Applicable Percentage" and "Applicable Spread" resulting in any change in the Applicable Percentage or Applicable Spread for Preferred Shares after the date given herewith, the Fund shall notify the Auction Agent in writing of such change in the Applicable Percentage or Applicable Spread prior to 12:00 Noon on the Business Day prior to the next Auction Date for any series of Preferred Shares succeeding such change. In determining the Maximum Rate for any series of Preferred Shares on any Auction Date as set forth in 2.5(a)(i) hereof, the Auction Agent shall be entitled to rely on the last Applicable Percentage and Applicable Spread for Preferred Shares of which it has most recently received notice from the Fund (or, in the absence of such notice, the percentage or spread determined by reference to the definition of Applicable Percentage and Applicable Spread, respectively). (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If ~~the rate obtained by the Auction Agent~~ any Treasury Index Rate is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any LIBOR Rate is to be determined by reference to Moneyline's Telerate Page 3750 or by rate quotations provided by LIBOR Dealer(s), as the ~~applicable~~ case may be, and Moneyline's Telerate Page 3750 is unavailable or the LIBOR ~~Rate and~~ Dealer(s) fail to provide rate quotations, as the case may be (as described in the Articles Supplementary), then the Auction Agent shall immediately notify the Fund so that the Fund can determine whether to select a Substitute LIBOR Dealer(s) to provide such rate quotation(s) not being supplied. (iii) If any Treasury Index Rate is to be based on rates supplied by ~~LIBOR~~ U.S. Government Securities Dealers and one or more of the ~~LIBOR~~ U.S. Government Securities Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such Treasury Index Rate, the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealer or ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ U.S. Government Securities Dealer or ~~LIBOR~~ U.S. Government Securities Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares based upon information provided to it by Broker-Dealers for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice in writing by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent in writing of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C A-3 to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day next preceding the ~~applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D A-4 to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent may, but shall not be ~~obligated~~obligated to, to request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.Preferred

Appears in 1 contract

Samples: Auction Agency Agreement (Cohen & Steers Reit & Utility Income Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be ~~changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures~~changed, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 2.04 of the ~~Articles Supplementary~~ Supplemental Indenture concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate ~~so determined~~ and of the Maximum ~~Applicable Rate~~Rate in effect on such Auction Date. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ Tortoise Notes (the "Tortoise Note Register") for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~Tortoise Notes. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities of~~ Tortoise Note Register; provided, that the ~~Existing Holders, such list, the results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ may request the Broker-Dealer to provide a list of ~~any Existing Holder with respect~~ its customers if in its sole discretion it determines to ~~such Existing Holder's transfer~~ do so. The Auction Agent may conclusively rely upon the information furnished to the Auction Agent by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~Tortoise Notes, upon notice by the Company to the ~~Auction Agent~~ Trustee of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be given to the Holders of Tortoise Notes to be redeemed), the ~~Auction Agent~~ Trustee promptly shall request the Securities Depository to notify ~~the Auction Agent~~ it of the identities of the Agent Members (and the respective numbers of ~~shares~~Tortoise Notes) from the accounts of which ~~shares~~ Tortoise Notes have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the ~~Auction preceding~~ the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the ~~Auction Agent~~ Trustee shall request each Agent Member so identified to disclose to ~~the Auction Agent~~ it (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Tortoise Notes are to be redeemed) the number of ~~shares of such series of AMPS~~ Tortoise Notes of each such Existing Holder, if any, to be redeemed by the Company, provided that the ~~Auction Agent~~ Trustee has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. Promptly upon its receipt of such information, the Trustee shall provide such information to the Auction Agent in writing. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Tortoise Notes shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Tortoise Notes from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Tortoise Notes if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Tortoise Notes and the seller failed to deliver such ~~shares~~ Tortoise Notes or (ii) sold any ~~shares of AMPS~~ Tortoise Notes and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~Tortoise Notes. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Tortoise Notes. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel in writing that its failure to do so would be ~~unlawful~~ unlawful, or (~~iii~~c) it is advised by its counsel in writing that failure to do so ~~would~~ could expose the Auction Agent to ~~loss,~~ loss liability, ~~claim,~~ claim or damage ~~or expense~~ for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Capital Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 11.2 of the ~~Articles Supplementary~~ Second Amended and Restated Bylaws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Fund and the Broker-Dealers ~~of the Reference Rate so determined and~~ of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR ~~Rate~~rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute~~ substitute LIBOR Dealer or ~~Substitute~~ substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The ~~Company~~ Fund promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Fund does not select any such ~~Substitute~~ substitute LIBOR Dealer or ~~Substitute~~ substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of~~ AMPS for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders ~~of each series~~ of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's ’s transfer of any ~~shares of~~ AMPS to another Person. (fii) In the event of any partial redemption of ~~any series of~~ AMPS, upon notice by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of~~ AMPS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of~~ AMPS shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership ~~of shares of a series~~ of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by ~~3:00 P.M. on~~ 12:00 noon of the ~~Business Day next preceding the applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of~~ AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of~~ AMPS and the seller failed to deliver such shares or (ii) sold any ~~shares of~~ AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners ~~of shares of any series~~ of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Fund, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (PIMCO Floating Rate Strategy Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If any "AA" Composite Commercial Paper Rate, Treasury Index Rate or Reference Rate, as the ~~rate obtained by the Auction Agent~~ case may be, is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any "AA" Composite Commercial Paper Rate ~~is the applicable LIBOR Rate and such rate~~ is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute Commercial Paper Dealer or ~~Substitute LIBOR~~ substitute Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) ~~If, after the date of this Agreement, there~~ If any Treasury Index Rate or Treasury Xxxx Rate is ~~any change in the prevailing rating of AMPS~~ to be based on rates supplied by ~~either~~ U.S. Government Securities Dealers and one or more of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread U.S. Government Securities Dealers shall not provide a quotation for the ~~AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing~~ determination of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemedTreasury Rate, the Auction Agent shall ~~request each Agent Member~~ immediately notify the Fund so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the ~~Auction Agent has been furnished with the name and telephone number of~~ Fund can determine whether to select a ~~person~~ substitute U.S. Government Securities Dealer or ~~department at such Agent Member from which it is~~ substitute U.S. Government Securities Dealers to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the ~~Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of~~ quotation or quotations not being supplied by any ~~series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-~~U.S. Government Securities Dealer ~~and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction~~ or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.U.S.

Appears in 1 contract

Samples: Auction Agency Agreement (Cohen & Steers Advantage Income Realty Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without prior written approval of the ~~date hereof~~Auction Agent (which approval shall not be unreasonably withheld). At the time of the closing of the initial issuance and sale of the AMPS (the "Closing"), the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and ~~accurate~~ accurate, and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than ~~five Business Days~~ seven days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) ~~The provisions contained~~ With respect to each Dividend Period that is a Special Dividend Period, the Company may, at its sole option and to the extent permitted by law, by telephonic and written notice (a "Request for a Special Dividend Period") to the Auction Agent and to each Broker-Dealer, request that the next succeeding Dividend Period for a series of AMPS will be a number of days (other than the number of days in ~~paragraph 2~~ the applicable Regular Dividend Period), evenly divisible by seven, and not fewer than seven nor more than 364 in the case of a Short Term Dividend Period or a number of whole years not greater than five years in the case of a Long Term Dividend Period, specified in such notice, provided that for any Auction occurring after the initial Auction, the Company may not give a Request for a Special Dividend Period (and any such request shall be null and void) unless the Company has received written confirmation from Xxxxx'x and S&P that such action would not impair the rating then assigned to the AMPS by Xxxxx'x and S&P and unless sufficient Clearing Bids were made in the last occurring Auction and unless full cumulative dividends and any amounts due with respect to redemptions payable prior to such date have been paid in full. Such Request for a Special Dividend Period, in the case of a Short Term Dividend Period, shall be given on or prior to the fourth day but not more than seven days prior to an Auction Date for the AMPS and, in the case of a Long Term Dividend Period, shall be given on or prior to the 14th day but not more than 28 days prior to the Auction Date for the AMPS. Upon receiving such Request for a Special Dividend Period, the Broker-Dealers(s) shall jointly determine whether given the factors set forth in Paragraph 3(c)(iii) of Article Sixth of the ~~Articles Supplementary concerning~~ Charter it is advisable that the Company issue a Notice of Special Dividend Period for the AMPS as contemplated by such Request for a Special Dividend Period and the Optional Redemption Price of the AMPS during such Special Dividend Period and the Specific Redemption Provisions and shall give the Company and the Auction Agent written notice (a "Response") of such determination by no later than the third day prior to such Auction Date. In making such determination the Broker-Dealer(s) will consider (i) existing short-term and long-term market rates and indices of such short-term and long-term rates, (ii) existing market supply and demand for short-term and long-term securities, (iii) existing yield curves for short-term and long-term securities comparable to the AMPS, (iv) industry and financial conditions which may affect the AMPS, (v) the investment objective of the Company, and (vi) the Dividend Periods and dividend rates at which current and potential beneficial holders of the ~~notification~~ AMPS would remain or become beneficial holders. If the Broker-Dealer(s) shall not give the Company and the Auction Agent a Response by such third day or if the Response states that given the factors referred to above it is not advisable that the Company give a Notice of a Special Dividend Period ~~will be followed by~~ (as defined below) for the AMPS, the Company ~~and~~may not give a Notice of a Special Dividend Period in respect of such Request for a Special Dividend Period. In the event the Response indicates that it is advisable that the Company give a Notice of Special Dividend Period for the AMPS, the Company may by no later than the second day prior to ~~the extent applicable,~~ such Auction Date give a notice (a "Notice of a Special Dividend Period") to the Auction Agent, the Securities Depository and each Broker-Dealer, which notice will specify (i) the duration of the Special Dividend Period, (ii) the Optional Redemption Price as specified in the related Response, and (iii) the Specific Redemption Provisions, if any, as specified in the related Response. The Company shall not give a Notice of a Special Dividend Period, or, if such Notice of a Special Dividend Period shall have already been given, shall give telephonic and written notice (a "Notice of Revocation") to the Auction Agent, each Broker-Dealer, and the ~~provisions contained therein are incorporated herein by reference~~ Securities Depository on or prior to the Business Day prior to the relevant Auction Date if (x) either the 1940 Act AMPS Coverage is not satisfied or the Company shall fail to maintain the AMPS Basic Maintenance Amount on each of the two Valuation Dates immediately preceding the Business Day prior to the relevant Auction Date on an actual basis and on a pro forma basis giving effect to the proposed Special Dividend Period (using as a pro forma dividend rate with respect to such Special Dividend Period the dividend rate which the Broker-Dealers shall advise the Company is an approximately equal rate for securities similar to the AMPS with an equal dividend period), provided that in ~~their entirety and~~ calculating the aggregate Discounted Value of Eligible Portfolio Property, the Xxxxx'x exposure period shall be deemed to be one week longer than the period utilized to produce the discount factors assigned by Xxxxx'x under the definition of Discount Factors found in Paragraph 1(a) of Article Sixth of the Charter, (y) sufficient funds for the payment of dividends payable on the immediately succeeding Dividend Payment Date have not been irrevocably deposited with the Auction Agent by the close of business on the third Business Day preceding the related Auction Date, or (z) the Broker-Dealer(s) jointly advise the Company that after consideration of the factors referred to above they have concluded that it is advisable to give a ~~part~~ Notice of ~~this Agreement~~ Revocation. If the Company is prohibited from giving a Notice of a Special Dividend Period as a result of the factors enumerated in clause (x), (y), or (z) of the preceding sentence or if the Company gives a Notice of Revocation with respect to a Notice of a Special Dividend Period, the ~~same extent as if~~ next succeeding Dividend Period will be a Regular Dividend Period. In addition, in the event sufficient Clearing Bids are not made in any Auction or such ~~provisions were set forth fully herein~~Auction is not held for any reason, the next succeeding Dividend Period will be a Regular Dividend Period and the Company may not again give a Notice of a Special Dividend Period (and any such attempted notice shall be null and void) until sufficient Clearing Bids have been made in an Auction with respect to a Regular Dividend Period. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Paragraph 1 of Article Sixth of the Charter; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction ~~Date~~Date for each series of AMPS, the Auction Agent shall notify the Company and the Broker-Dealers by telephone of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ shall immediately notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company shall promptly ~~shall~~ advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Applicable Percentage"), the Company shall notify the Auction Agent in writing of such change in the Applicable Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Applicable Percentage for the AMPS on the date of this Agreement is as specified in ~~paragraph 10(a)(vii~~Paragraph 8(a)(vii) of Article Sixth of the ~~Articles Supplementary~~Charter. The Auction Agent shall be entitled to rely on the last Applicable Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Applicable Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of for each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders~~, such list~~, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (fii) In the event of any partial redemption of any ~~series of~~ Series A AMPS, Series B AMPS or Series C AMPS, as the case may be, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent shall promptly ~~shall~~ request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such ~~redemption~~redemption and, ~~and~~ at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, ; provided ~~that~~ the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as ~~having ownership~~ the beneficial owner of the number of shares of ~~such series of~~ the Series A AMPS, Series B AMPS or Series C AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the beneficial ownership of shares of ~~a series of~~ the Series A AMPS, Series B AMPS or Series C AMPS from an Existing Holder to another ~~Existing Holder, or to another~~ Person ~~if permitted by the Company,~~ only if (A) such transfer is ~~made~~ pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified ~~of such transfer~~ in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing ~~Holder or by~~ Holder, the Agent Member of such Existing Holder, or the Broker-Dealer of such Existing Holder of such transfer. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in ~~writing,~~ writing in a notice substantially in the form of Exhibit D to the Broker-Dealer ~~Agreement,~~ Agreement by the Agent Member or the Broker-Dealer of any Person that (i1) purchased any shares of AMPS and the seller failed to deliver such shares or (ii2) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are ~~Beneficial Owners~~ Existing Holders of shares of ~~any series~~ AMPS and the aggregate principal amount of ~~AMPS~~shares of AMPS held by such Existing Holders. ~~The~~ Except as provided in Section 2.7 hereof, the Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure~~ unlawful. Notwithstanding the above, and as necessary to ~~do so would expose~~ comply with applicable securities laws, either the Auction Agent or the Company may disclose to ~~loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory~~ anyone any information with respect to itthe United States federal income tax treatment and tax structure of this arrangement.

Appears in 1 contract

Samples: Auction Agent Agreement (Aberdeen Asia Pacific Income Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in ~~clause (vii) of Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4(b) of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (id) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ MMP Shares (the “MMP Shares Register”) for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~MMP Shares. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities of~~ MMP Shares Register; provided, that the ~~Existing Holders, such list, the results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ may request the Broker-Dealer to provide a list of ~~any Existing Holder with respect~~ its customers if in its sole discretion it determines to ~~such Existing Holder's transfer~~ do so. The Auction Agent may conclusively rely upon the information furnished to the Auction Agent by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~MMP Shares, upon notice by the Company to the Auction Agent of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be mailed to the Holders of the MMP shares to be redeemed), the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~MMP Shares) from the accounts of which ~~shares~~ MMP Shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ MMP Shares are to be redeemed) the number of ~~shares of such series of AMPS~~ MMP Shares of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ MMP Shares shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ MMP Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ MMP Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ MMP Shares and the seller failed to deliver such ~~shares~~ MMP Shares or (ii) sold any ~~shares of AMPS~~ MMP Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~MMP Shares. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~MMP Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel in writing that its failure to do so would be unlawful or (~~iii~~c) it is advised by its counsel that failure to do so ~~would~~ could expose the Auction Agent to loss, liability, ~~claim,~~ claim or damage ~~or expense~~ for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Infrastructure Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without prior written approval of the ~~date hereof~~Auction Agent (which approval shall not be unreasonably withheld). At the time of the closing of the initial issuance and sale of the AMPS (the "Closing"), the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and ~~accurate~~ accurate, and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than ~~five Business Days~~ seven days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) ~~The provisions contained~~ With respect to each Dividend Period that is a Special Dividend Period, the Company may, at its sole option and to the extent permitted by law, by telephonic and written notice (a "Request for a Special Dividend Period") to the Auction Agent and to each Broker-Dealer, request that the next succeeding Dividend Period for a series of AMPS will be a number of days (other than the number of days in ~~paragraph 2~~ the applicable Regular Dividend Period), evenly divisible by seven, and not fewer than seven nor more than 364 in the case of a Short Term Dividend Period or a number of whole years not greater than five years in the case of a Long Term Dividend Period, specified in such notice, provided that for any Auction occurring after the initial Auction, the Company may not give a Request for a Special Dividend Period (and any such request shall be null and void) unless the Company has received written confirmation from Xxxxx'x and S&P that such action would not impair the rating then assigned to the AMPS by Xxxxx'x and S&P and unless sufficient Clearing Bids were made in the last occurring Auction and unless full cumulative dividends and any amounts due with respect to redemptions payable prior to such date have been paid in full. Such Request for a Special Dividend Period, in the case of a Short Term Dividend Period, shall be given on or prior to the fourth day but not more than seven days prior to an Auction Date for the AMPS and, in the case of a Long Term Dividend Period, shall be given on or prior to the 14th day but not more than 28 days prior to the Auction Date for the AMPS. Upon receiving such Request for a Special Dividend Period, the Broker-Dealers(s) shall jointly determine whether given the factors set forth in Paragraph 3(c)(iii) of Article Sixth of the ~~Articles Supplementary concerning~~ Charter it is advisable that the Company issue a Notice of Special Dividend Period for the AMPS as contemplated by such Request for a Special Dividend Period and the Optional Redemption Price of the AMPS during such Special Dividend Period and the Specific Redemption Provisions and shall give the Company and the Auction Agent written notice (a "Response") of such determination by no later than the third day prior to such Auction Date. In making such determination the Broker-Dealer(s) will consider (i) existing short-term and long-term market rates and indices of such short-term and long-term rates, (ii) existing market supply and demand for short-term and long-term securities, (iii) existing yield curves for short-term and long-term securities comparable to the AMPS, (iv) industry and financial conditions which may affect the AMPS, (v) the investment objective of the Company, and (vi) the Dividend Periods and dividend rates at which current and potential beneficial holders of the ~~notification~~ AMPS would remain or become beneficial holders. If the Broker-Dealer(s) shall not give the Company and the Auction Agent a Response by such third day or if the Response states that given the factors referred to above it is not advisable that the Company give a Notice of a Special Dividend Period ~~will be followed by~~ (as defined below) for the AMPS, the Company ~~and~~may not give a Notice of a Special Dividend Period in respect of such Request for a Special Dividend Period. In the event the Response indicates that it is advisable that the Company give a Notice of Special Dividend Period for the AMPS, the Company may by no later than the second day prior to ~~the extent applicable,~~ such Auction Date give a notice (a "Notice of a Special Dividend Period") to the Auction Agent, the Securities Depository and each Broker-Dealer, which notice will specify (i) the duration of the Special Dividend Period, (ii) the Optional Redemption Price as specified in the related Response, and (iii) the Specific Redemption Provisions, if any, as specified in the related Response. The Company shall not give a Notice of a Special Dividend Period, or, if such Notice of a Special Dividend Period shall have already been given, shall give telephonic and written notice (a "Notice of Revocation") to the Auction Agent, each Broker-Dealer, and the ~~provisions contained therein are incorporated herein by reference~~ Securities Depository on or prior to the Business Day prior to the relevant Auction Date if (x) either the 1940 Act AMPS Coverage is not satisfied or the Company shall fail to maintain the AMPS Basic Maintenance Amount on each of the two Valuation Dates immediately preceding the Business Day prior to the relevant Auction Date on an actual basis and on a pro forma basis giving effect to the proposed Special Dividend Period (using as a pro forma dividend rate with respect to such Special Dividend Period the dividend rate which the Broker-Dealers shall advise the Company is an approximately equal rate for securities similar to the AMPS with an equal dividend period), provided that in ~~their entirety and~~ calculating the aggregate Discounted Value of Eligible Portfolio Property, the Xxxxx'x exposure period shall be deemed to be one week longer than the period utilized to produce the discount factors assigned by Xxxxx'x under the definition of Discount Factors found in Paragraph 1(a) of Article Sixth of the Charter, (y) sufficient funds for the payment of dividends payable on the immediately succeeding Dividend Payment Date have not been irrevocably deposited with the Auction Agent by the close of business on the third Business Day preceding the related Auction Date, or (z) the Broker-Dealer(s) jointly advise the Company that after consideration of the factors referred to above they have concluded that it is advisable to give a ~~part~~ Notice of ~~this Agreement~~ Revocation. If the Company is prohibited from giving a Notice of a Special Dividend Period as a result of the factors enumerated in clause (x), (y), or (z) of the preceding sentence or if the Company gives a Notice of Revocation with respect to a Notice of a Special Dividend Period, the ~~same extent as if~~ next succeeding Dividend Period will be a Regular Dividend Period. In addition, in the event sufficient Clearing Bids are not made in any Auction or such ~~provisions were set forth fully herein~~Auction is not held for any reason, the next succeeding Dividend Period will be a Regular Dividend Period and the Company may not again give a Notice of a Special Dividend Period (and any such attempted notice shall be null and void) until sufficient Clearing Bids have been made in an Auction with respect to a Regular Dividend Period. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Paragraph 1 of Article Sixth of the Charter; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction ~~Date~~Date for each series of AMPS, the Auction Agent shall notify the Company and the Broker-Dealers by telephone of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ shall immediately notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company shall promptly ~~shall~~ advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Applicable Percentage"), the Company shall notify the Auction Agent in writing of such change in the Applicable Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Applicable Percentage for the AMPS on the date of this Agreement is as specified in ~~paragraph 10(a)(vii~~Paragraph 8(a)(vii) of Article Sixth of the ~~Articles Supplementary~~Charter. The Auction Agent shall be entitled to rely on the last Applicable Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Applicable Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of for each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders~~, such list~~, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (fii) In the event of any partial redemption of any ~~series of~~ Series E AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent shall promptly ~~shall~~ request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such ~~redemption~~redemption and, ~~and~~ at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, ; provided ~~that~~ the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as ~~having ownership~~ the beneficial owner of the number of shares of ~~such series of~~ the Series E AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the beneficial ownership of shares of ~~a series of~~ the Series E AMPS from an Existing Holder to another ~~Existing Holder, or to another~~ Person ~~if permitted by the Company,~~ only if (A) such transfer is ~~made~~ pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified ~~of such transfer~~ in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing ~~Holder or by~~ Holder, the Agent Member of such Existing Holder, or the Broker-Dealer of such Existing Holder of such transfer. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in ~~writing,~~ writing in a notice substantially in the form of Exhibit D to the Broker-Dealer ~~Agreement,~~ Agreement by the Agent Member or the Broker-Dealer of any Person that (i1) purchased any shares of AMPS and the seller failed to deliver such shares or (ii2) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are ~~Beneficial Owners~~ Existing Holders of shares of ~~any series~~ AMPS and the aggregate principal amount of ~~AMPS~~shares of AMPS held by such Existing Holders. ~~The~~ Except as provided in Section 2.7 hereof, the Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure~~ unlawful. Notwithstanding the above, and as necessary to ~~do so would expose~~ comply with applicable securities laws, either the Auction Agent or the Company may disclose to ~~loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory~~ anyone any information with respect to itthe United States federal income tax treatment and tax structure of this arrangement.

Appears in 1 contract

Samples: Auction Agent Agreement (Aberdeen Asia Pacific Income Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the ~~Broker-~~Broker- Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a ~~Broker-~~Broker- Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (id) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company Except as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iiotherwise provided in paragraph 2(f) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, ~~thereby resulting~~ whenever the Company intends to include any net capital gains or other income subject to regular Federal income tax in any ~~change in the corresponding applicable percentage or corresponding applicable spread for the~~ dividend on shares of AMPS~~, as set forth in said definition (the "Percentage or Spread")~~, the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to will notify the Auction Agent of the ~~identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member~~ amount to ~~contact regarding such redemption, and~~ be so included at least ~~two~~ five Business Days prior to the Auction ~~preceding~~ Date on which the ~~date of redemption with respect~~ Applicable Rate for such dividend is to ~~shares of such series of AMPS being partially redeemed,~~ be established. Whenever the Auction Agent ~~shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by~~ receives such ~~Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by~~ notice from the Company, ~~provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which~~ in turn it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the will notify each Broker-~~Dealer Agreements~~Dealer, by who, on or prior to such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date~~. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing~~, in ~~a notice substantially in the form of Exhibit D to the~~ accordance with its Broker-Dealer Agreement, by will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Company includes any additional amounts in a dividend as provided in paragraph 2(f) of the Articles Supplementary, the Company will notify the Auction Agent ~~Member~~ of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Company, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such sharesAgreement, will notify its Beneficial Owners. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agent Agreement (Muniholdings California Insured Fund Iv Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of~~ purchase AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (c) The Applicable Percentage and the Applicable Spread on the date of the Agreement are those rates as determined by the Fund and provided to the Auction Agent on the date even herewith. If there is any change in the credit rating of AMPS by the rating agency (or substitute or successor rating agencies) referred to in the definition of "Applicable Percentage" and "Applicable Spread" resulting in any change in the Applicable Percentage or Applicable Spread for AMPS after the date given herewith, the Fund shall notify the Auction Agent in writing of such change in the Applicable Percentage or Applicable Spread prior to 12:00 Noon on the Business Day prior to the next Auction Date for any series of AMPS succeeding such change. In determining the Maximum Rate for any series of AMPS on any Auction Date as set forth in 2.6(a)(i) hereof, the Auction Agent shall be entitled to rely on the last Applicable Percentage and Applicable Spread for AMPS of which it has most recently received notice from the Fund (or, in the absence of such notice, the percentage or spread determined by reference to the definition ofApplicable Percentage and Applicable Spread, respectively). (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ dividend rate and the Maximum ~~Applicable~~ Rate. If ~~the rate obtained by the Auction Agent~~ any Treasury Index Rate is not quoted on an interest or ~~discount~~ bond equivalent, as the case may be, basis, the Auction Agent shall convert the quoted rate to the interest or bond equivalent thereof as set forth in the definition of such rate in the Articles Supplementary if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest or bond equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest or bond equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference~~ any LIBOR Rate is to be determined by reference to Moneyline's Telerate Page 3750 or by rate quotations provided by LIBOR Dealer(s), as the ~~applicable~~ case may be, and Moneyline's Telerate Page 3750 is unavailable or the LIBOR ~~Rate and~~ Dealer(s) fail to provide rate quotations, as the case may be (as described in the Articles Supplementary), then the Auction Agent shall immediately notify the Fund so that the Fund can determine whether to select a Substitute LIBOR Dealer(s) to provide such rate quotation(s) not being supplied. (iii) If any Treasury Index Rate is to be based on rates supplied by ~~LIBOR~~ U.S. Government Securities Dealers and one or more of the ~~LIBOR~~ U.S. Government Securities Dealers shall not provide a quotation for the determination of ~~the applicable LIBOR~~ such Treasury Index Rate, the Auction Agent ~~promptly~~ shall immediately notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealer or ~~Substitute LIBOR~~ substitute U.S. Government Securities Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ U.S. Government Securities Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (f) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of such series of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of such series of AMPS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of any series of AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.U.S.

Appears in 1 contract

Samples: Auction Agency Agreement (Cohen & Steers Select Utility Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without prior written approval of the ~~date hereof~~Auction Agent (which approval shall not be unreasonably withheld). At the time of the closing of the initial issuance and sale of the AMPS (the "Closing"), the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and ~~accurate~~ accurate, and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than ~~five Business Days~~ seven days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) ~~The provisions contained~~ With respect to each Dividend Period that is a Special Dividend Period, the Company may, at its sole option and to the extent permitted by law, by telephonic and written notice (a "Request for a Special Dividend Period") to the Auction Agent and to each Broker-Dealer, request that the next succeeding Dividend Period for a series of AMPS will be a number of days (other than the number of days in ~~paragraph 2~~ the applicable Regular Dividend Period), evenly divisible by seven, and not fewer than seven nor more than 364 in the case of a Short Term Dividend Period or a number of whole years not greater than five years in the case of a Long Term Dividend Period, specified in such notice, provided that for any Auction occurring after the initial Auction, the Company may not give a Request for a Special Dividend Period (and any such request shall be null and void) unless the Company has received written confirmation from Xxxxx'x and S&P that such action would not impair the rating then assigned to the AMPS by Xxxxx'x and S&P and unless sufficient Clearing Bids were made in the last occurring Auction and unless full cumulative dividends and any amounts due with respect to redemptions payable prior to such date have been paid in full. Such Request for a Special Dividend Period, in the case of a Short Term Dividend Period, shall be given on or prior to the fourth day but not more than seven days prior to an Auction Date for the AMPS and, in the case of a Long Term Dividend Period, shall be given on or prior to the 14th day but not more than 28 days prior to the Auction Date for the AMPS. Upon receiving such Request for a Special Dividend Period, the Broker-Dealers(s) shall jointly determine whether given the factors set forth in Paragraph 3(c)(iii) of Article XII of the ~~Articles Supplementary concerning~~ Charter it is advisable that the Company issue a Notice of Special Dividend Period for the AMPS as contemplated by such Request for a Special Dividend Period and the Optional Redemption Price of the AMPS during such Special Dividend Period and the Specific Redemption Provisions and shall give the Company and the Auction Agent written notice (a "Response") of such determination by no later than the third day prior to such Auction Date. In making such determination the Broker-Dealer(s) will consider (i) existing short-term and long-term market rates and indices of such short-term and long-term rates, (ii) existing market supply and demand for short-term and long-term securities, (iii) existing yield curves for short-term and long-term securities comparable to the AMPS, (iv) industry and financial conditions which may affect the AMPS, (v) the investment objective of the Company, and (vi) the Dividend Periods and dividend rates at which current and potential beneficial holders of the ~~notification~~ AMPS would remain or become beneficial holders. If the Broker-Dealer(s) shall not give the Company and the Auction Agent a Response by such third day or if the Response states that given the factors referred to above it is not advisable that the Company give a Notice of a Special Dividend Period ~~will be followed by~~ (as defined below) for the AMPS, the Company ~~and~~may not give a Notice of a Special Dividend Period in respect of such Request for a Special Dividend Period. In the event the Response indicates that it is advisable that the Company give a Notice of Special Dividend Period for the AMPS, the Company may by no later than the second day prior to ~~the extent applicable,~~ such Auction Date give a notice (a "Notice of a Special Dividend Period") to the Auction Agent, the Securities Depository and each Broker-Dealer, which notice will specify (i) the duration of the Special Dividend Period, (ii) the Optional Redemption Price as specified in the related Response, and (iii) the Specific Redemption Provisions, if any, as specified in the related Response. The Company shall not give a Notice of a Special Dividend Period, or, if such Notice of a Special Dividend Period shall have already been given, shall give telephonic and written notice (a "Notice of Revocation") to the Auction Agent, each Broker-Dealer, and the ~~provisions contained therein are incorporated herein by reference~~ Securities Depository on or prior to the Business Day prior to the relevant Auction Date if (x) either the 1940 Act AMPS Coverage is not satisfied or the Company shall fail to maintain the AMPS Basic Maintenance Amount on each of the two Valuation Dates immediately preceding the Business Day prior to the relevant Auction Date on an actual basis and on a pro forma basis giving effect to the proposed Special Dividend Period (using as a pro forma dividend rate with respect to such Special Dividend Period the dividend rate which the Broker-Dealers shall advise the Company is an approximately equal rate for securities similar to the AMPS with an equal dividend period), provided that in ~~their entirety and~~ calculating the aggregate Discounted Value of Eligible Portfolio Property, the Xxxxx'x exposure period shall be deemed to be one week longer than the period utilized to produce the discount factors assigned by Xxxxx'x under the definition of Discount Factors found in Paragraph 1(a) of Article XII of the Charter, (y) sufficient funds for the payment of dividends payable on the immediately succeeding Dividend Payment Date have not been irrevocably deposited with the Auction Agent by the close of business on the third Business Day preceding the related Auction Date, or (z) the Broker-Dealer(s) jointly advise the Company that after consideration of the factors referred to above they have concluded that it is advisable to give a ~~part~~ Notice of ~~this Agreement~~ Revocation. If the Company is prohibited from giving a Notice of a Special Dividend Period as a result of the factors enumerated in clause (x), (y), or (z) of the preceding sentence or if the Company gives a Notice of Revocation with respect to a Notice of a Special Dividend Period, the ~~same extent as if~~ next succeeding Dividend Period will be a Regular Dividend Period. In addition, in the event sufficient Clearing Bids are not made in any Auction or such ~~provisions were set forth fully herein~~Auction is not held for any reason, the next succeeding Dividend Period will be a Regular Dividend Period and the Company may not again give a Notice of a Special Dividend Period (and any such attempted notice shall be null and void) until sufficient Clearing Bids have been made in an Auction with respect to a Regular Dividend Period. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Paragraph 1 of Article XII of the Charter; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers by telephone of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ shall immediately notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company shall promptly ~~shall~~ advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Applicable Percentage"), the Company shall notify the Auction Agent in writing of such change in the Applicable Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Applicable Percentage for the AMPS on the date of this Agreement is as specified in ~~paragraph 10(a)(vii~~Paragraph 8(a)(vii) of Article XII of the ~~Articles Supplementary~~Charter. The Auction Agent shall be entitled to rely on the last Applicable Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Applicable Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of ~~each series of~~ AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders~~, such list~~, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (fii) In the event of any partial redemption of ~~any series of~~ the AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent shall promptly ~~shall~~ request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such ~~redemption~~redemption and, ~~and~~ at least two Business Days prior to the Auction preceding the date of redemption with respect to shares ~~of such series~~ of AMPS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of ~~such series of~~ the AMPS of each such Existing Holder, if any, to be redeemed by the Company, ; provided ~~that~~ the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as ~~having ownership~~ the beneficial owner of the number of shares of ~~such series of~~ the AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the beneficial ownership of shares ~~of a series~~ of AMPS from an Existing Holder to another ~~Existing Holder, or to another~~ Person ~~if permitted by the Company,~~ only if (A) such transfer is ~~made~~ pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified ~~of such transfer~~ in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing ~~Holder or by~~ Holder, the Agent Member of such Existing Holder, or the Broker-Dealer of such Existing Holder of such transfer. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in ~~writing,~~ writing in a notice substantially in the form of Exhibit D to the Broker-Dealer ~~Agreement,~~ Agreement by ~~the Agent Member or~~ the Broker-Dealer of any Person that (i1) purchased any shares of AMPS and the seller failed to deliver such shares or (ii2) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are ~~Beneficial Owners~~ Existing Holders of shares of ~~any series~~ AMPS and the aggregate principal amount of ~~AMPS~~shares of AMPS held by such Existing Holders. ~~The~~ Except as provided in Section 2.7 hereof, the Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agent Agreement (Aberdeen Global Income Fund Inc)

Appears in 1 contract

Samples: Auction Agent Agreement (Muni Intermediate Duration Fund Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) Pursuant to Section 2.5 hereof, the Company shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of ~~Broker-~~Broker- Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a ~~Broker-~~Broker- Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a ~~Broker-~~Broker- Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in paragraph 2 of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in paragraph 2(f) of the Articles Supplementary, whenever the Company intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of AMPS, the Company will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Company, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Company includes any additional amounts in a dividend as provided in paragraph 2(f) of the Articles Supplementary, the Company will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Company, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Company makes a Retroactive Taxable Allocation, the Company, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the stock books of the Company. The Company, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in paragraph 1 of the Articles Supplementary; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the Company so that the Company can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency~~agencies) referred to in the definition of the Maximum Applicable Rate, ~~subject to the provisions of paragraph 12 of the Articles Supplementary,~~ thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the AMPS, as set forth in said definition (the "~~Percentage or Spread~~Percentage"), the Company shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the Company (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of AMPS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of each series of AMPS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person. (fii) In the event of any partial redemption of any series of AMPS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of AMPS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of AMPS shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of shares of a series of AMPS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of AMPS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of AMPS and the seller failed to deliver such shares or (ii) sold any shares of AMPS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of~~ AMPS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agent Agreement (Muniholdings Insured Fund Iv Inc)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be ~~changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures~~changed, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4(b) of Part I of the Articles Supplementary concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than ~~9:30 A.M.~~ 10:30 a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ MMP Shares (the "MMP Shares Register") for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~MMP Shares. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities of~~ MMP Shares Register; provided, that the ~~Existing Holders, such list, the results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ may request the Broker-Dealer to provide a list of ~~any Existing Holder with respect~~ its customers if in its sole discretion it determines to ~~such Existing Holder's transfer~~ do so. The Auction Agent may conclusively rely upon the information furnished to the Auction Agent by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~MMP Shares, upon notice by the Company to the Auction Agent of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be given to the Holders of the MMP shares to be redeemed), the Auction Agent ~~promptly~~ shall at least three (3) Business Days prior to the date of redemption request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~MMP Shares) from the accounts of which ~~shares~~ MMP Shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the ~~Auction preceding the~~ date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each ~~Agent Member~~ Broker-Dealer so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ MMP Shares are to be redeemed) the number of ~~shares of such series of AMPS~~ MMP Shares of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such ~~Agent Member~~ Broker-Dealer from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ MMP Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ MMP Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ MMP Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ MMP Shares and the seller failed to deliver such ~~shares~~ MMP Shares or (ii) sold any ~~shares of AMPS~~ MMP Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~MMP Shares. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~MMP Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel in writing that its failure to do so would be unlawful or (~~iii~~c) it is advised by its counsel in writing that failure to do so ~~would~~ could expose the Auction Agent to loss, liability, ~~claim,~~ claim or damage ~~or expense~~ for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Capital Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate and shall indicate ~~thereon, or on a separate list,~~ thereon the identity of each Existing Holder, if any, whose most recent Order was submitted ~~by a Broker-Dealer on such list~~ and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Kayne Notes. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 2.04 of the ~~Articles Supplementary~~ Supplemental Indenture concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Kayne Notes for purposes of each ~~Auction~~individual Auction based on the information provided to it from time to time by the Broker-Dealers. The Company shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS,~~ Kayne Notes and the ~~Broker-Dealer~~ number of notes purchased by each such Existing ~~Holder through which such Existing Holder purchased such shares~~Holder. The Auction Agent may rely upon, as conclusive evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing ~~Holder,~~ Holder or the Agent Member ~~of any Existing Holder or the Broker-Dealer~~ of any Existing Holder with respect to such Existing Holder's ’s transfer of any ~~shares of AMPS~~ Kayne Notes to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Kayne Notes, upon notice by the Company to the Trustee and the Auction Agent of such partial redemption, the ~~Auction Agent~~ Trustee promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~Kayne Notes) from the accounts of which ~~shares~~ Kayne Notes have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Kayne Notes are to be redeemed) the number of ~~shares of such series of AMPS~~ Kayne Notes of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Kayne Notes shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Kayne Notes from an Existing Holder to another Existing ~~Holder, or to another Person if permitted by the Company,~~ Holder only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Kayne Notes if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Kayne Notes and the seller failed to deliver such ~~shares~~ Kayne Notes or (ii) sold any ~~shares of AMPS~~ Kayne Notes and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~Kayne Notes. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Kayne Notes. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such ~~disclosure,~~ disclosure or (iib) it is advised by its counsel in writing that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (Kayne Anderson MLP Investment CO)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the ~~Company~~ Fund shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate based upon information provided to it by Broker-Dealers and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase Preferred Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Fund shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Fund shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4 of Part I of Article X of the ~~Articles Supplementary~~ Bylaws concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the ~~Company~~ Fund and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. In the case of any conflict between the terms of any document incorporated herein by reference and the terms hereof, the Auction Agent shall not be liable for its actions or inaction in accordance with the terms of this Agreement. (c) The current Applicable Percentage is 150%. In the event that the credit rating of the Preferred Shares changes in a way that results in a change in the Applicable Percentage, the Fund shall send prompt notice of such change to the Auction Agent. In the absence of its actual receipt of any such notice, the Auction Agent is authorized to apply, and shall be fully protected in applying, the Applicable Percentage last communicated to it by the Fund in a notice or set forth above in this paragraph. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate~~ distribution rate and the Maximum ~~Applicable~~ Rate. If any LIBOR Rate, Treasury Index Rate, Treasury Note Rate or Reference Rate, as the ~~rate obtained by the Auction Agent~~ case may be, is not quoted on an interest ~~or discount~~ equivalent basis, the Auction Agent shall convert the quoted rate to the interest equivalent thereof as set forth in the definition of such rate in the Bylaws if the rate obtained by the Auction Agent is quoted on a discount basis, or if such rate is quoted on a basis other than an interest equivalent or discount basis the Auction Agent shall convert the quoted rate to an interest equivalent rate after consultation with the ~~Company~~ Fund as to the method of such conversion~~. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate~~. (ii) If ~~the Reference Rate is the applicable~~ any LIBOR Rate ~~and such rate~~ is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of ~~the applicable~~ such LIBOR Rate, the Auction Agent shall promptly ~~shall~~ notify the ~~Company~~ Fund so that the ~~Company~~ Fund can determine whether to select a ~~Substitute~~ substitute LIBOR Dealer or ~~Substitute~~ substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The ~~Company~~ Fund shall promptly ~~shall~~ advise the Auction Agent of any such selection~~. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers~~. (iii) ~~If, after the date of this Agreement, there~~ If any Treasury Index Rate or Treasury Note Rate is ~~any change in the prevailing rating of AMPS~~ to be based on rates supplied by ~~either~~ U.S. Government Securities Dealers and one or more of the ~~rating agencies (or Substitute Rating Agency or successor rating agency) referred to in~~ U.S. Government Securities Dealers shall not provide a quotation for the ~~definition~~ determination of ~~the Maximum Applicable~~ such Treasury Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent ~~in writing of such change in~~ shall promptly notify the ~~Percentage~~ Fund so that the Fund can determine whether to select a substitute U.S. Government Securities Dealer or ~~Spread prior~~ substitute U.S. Government Securities Dealers to ~~9:00 A.M. on~~ provide the quotation or quotations not being supplied by any U.S. Government Securities Dealer or U.S. Government Securities Dealers. The Fund shall promptly advise the Auction ~~Date for AMPS next succeeding~~ Agent of any such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereofselection. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ Preferred Shares based upon information provided to it by Broker-Dealers for purposes of each individual Auction. The ~~Company~~ Fund shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~Preferred Shares, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and written notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ Preferred Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~Preferred Shares, upon notice in writing by the ~~Company~~ Fund to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent in writing of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ Preferred Shares of each such Existing Holder, if any, to be redeemed by the ~~Company~~Fund, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Preferred Shares shown in the Auction Agent's registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Preferred Shares from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Fund, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of ~~Exhibit C~~ EXHIBIT B to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day next preceding the ~~applicable~~ Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Preferred Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of ~~Exhibit D~~ EXHIBIT C to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Preferred Shares and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ Preferred Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gf) The Auction Agent may, but shall not be ~~obligated~~obligated to, to request that the ~~Broker-~~Broker Dealers, as set forth in Section ~~3.2(c~~3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Preferred Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company~~Fund; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel that its failure to do so would be unlawful or (~~iii~~c) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (RMR Hospitality & Real Estate Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in ~~clause (vii) of Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 2.04 of the ~~Articles Supplementary~~ Supplemental Indenture concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (ii) If the Reference Rate is the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ Tortoise Notes (the “Tortoise Note Register”) for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~Tortoise Notes. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities~~ Tortoise Note Register; provided, that the Auction Agent may request the Broker Dealer to provide a list of its customers if in its sole discretion it determines to do so. The Auction Agent may conclusively rely upon the ~~Existing Holders, such list,~~ information furnished to the ~~results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any Existing Holder with respect to such Existing Holder's transfer of any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~Tortoise Notes, upon notice by the Company to the Auction Agent of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be mailed to the Holders of Tortoise Notes to be redeemed), the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~Tortoise Notes) from the accounts of which ~~shares~~ Tortoise Notes have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Tortoise Notes are to be redeemed) the number of ~~shares of such series of AMPS~~ Tortoise Notes of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Tortoise Notes shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Tortoise Notes from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Tortoise Notes if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Tortoise Notes and the seller failed to deliver such ~~shares~~ Tortoise Notes or (ii) sold any ~~shares of AMPS~~ Tortoise Notes and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~Tortoise Notes. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Tortoise Notes. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel in writing that its failure to do so would be unlawful, or (c) it is advised by its counsel that ~~its~~ failure to do so ~~would be unlawful or (iii) failure to do so would~~ could expose the Auction Agent to ~~loss,~~ loss liability, ~~claim,~~ claim or damage ~~or expense~~ for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Infrastructure Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a1) Pursuant to Section 2.5 hereof, the Trust shall not designate any Person to act as a Broker-Dealer without the prior written approval of the Auction Agent (which approval shall not be withheld unreasonably). As of the date hereof, the ~~Company~~ Trust shall provide the Auction Agent with a list of the Broker-Dealers previously approved by the Auction Agent and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall ~~keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to~~ keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of ~~AMPS~~APS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the ~~Company~~ Trust shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the ~~Company~~ Trust shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b2) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) ~~of Paragraph~~ of (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c3) The provisions contained in ~~paragraph~~ Section 2 of Article VII of the ~~Articles Supplementary~~ Amended By-laws concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the ~~Company~~ Trust and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) Except as otherwise provided in Sections 2(e) and 2(f) of Article VII of the Amended By-laws, whenever the Trust intends to include any net capital gains or other income subject to regular Federal income tax in any dividend on shares of APS, the Trust will notify the Auction Agent of the amount to be so included at least five Business Days prior to the Auction Date on which the Applicable Rate for such dividend is to be established. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify each Broker-Dealer, who, on or prior to such Auction Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners and Potential Beneficial Owners believed to be interested in submitting an Order in the Auction to be held on such Auction Date. Whenever the Trust includes any additional amounts in a dividend as provided in Section 2(e) of Article VII of the Amended By-laws, the Trust will notify the Auction Agent of such additional amounts to be so included in such dividend at least five Business Days prior to the applicable Dividend Payment Date. Whenever the Auction Agent receives such notice from the Trust, in turn it will notify the Securities Depository and each Broker- Dealer, who, on or prior to the applicable Dividend Payment Date, in accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners. (ii) If the Trust makes a Retroactive Taxable Allocation, the Trust, within 90 days (and generally within 60 days) after the end of its fiscal year for which a Retroactive Taxable Allocation is made, will provide notice thereof to the Auction Agent and to each Holder (initially the Securities Depository) during such fiscal year at such Holder's address as the same appears or last appeared on the stock books of the Trust. The Trust, within 30 days after such notice is given to the Auction Agent, will pay to the Auction Agent (who then will distribute to such Holders), out of funds legally available therefor, a cash amount equal to the aggregate Additional Dividend with respect to all Retroactive Taxable Allocations made to such Holders during the fiscal year in question. (iii) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not quoted on an interest basis but is quoted on a discount basis, the Auction Agent shall convert the quoted rate to an Interest Equivalent, as set forth in Section 1 of the Amended By-laws; or, if the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the ~~Company~~ Trust as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the ~~Company~~ Trust and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (iii) If the Reference Rate is the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ "AA" Composite Commercial Paper Rate, the Auction Agent ~~promptly~~ immediately shall notify the ~~Company~~ Trust so that the ~~Company~~ Trust can determine whether to select a Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers to provide the quotation or quotations not being supplied by any ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. The ~~Company~~ Trust promptly shall advise the Auction Agent of any such selection. If the ~~Company~~ Trust does not select any such Substitute ~~LIBOR~~ Commercial Paper Dealer or Substitute ~~LIBOR~~ Commercial Paper Dealers, then the rates shall be supplied by the remaining ~~LIBOR~~ Commercial Paper Dealer or ~~LIBOR~~ Commercial Paper Dealers. (~~iii~~ii) If, after the date of this Agreement, there is any change in the prevailing rating of ~~AMPS~~ APS by ~~either of the rating agencies~~ Standard & Poor's Ratings Group (or ~~Substitute Rating Agency~~ substitute or successor rating ~~agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary~~agencies), thereby resulting in any change in the corresponding applicable percentage ~~or corresponding applicable spread~~ for the ~~AMPS~~APS, as set forth in ~~said~~ the definition of Maximum Application Rate (the "~~Percentage or Spread~~Percentage"), the ~~Company~~ Trust shall notify the Auction Agent in writing of such change in the Percentage ~~or Spread~~ prior to 9:00 A.M. on the Auction Date for ~~AMPS~~ APS next succeeding such change. The Percentage for the ~~AMPS~~ APS on the date of this Agreement is ~~as specified in paragraph 10(a)(vii) of the Articles Supplementary~~110%. The Auction Agent shall be entitled to rely on the last Percentage ~~or Spread~~ of which it has received notice from the ~~Company~~ Trust (or, in the absence of such notice, the Percentage ~~or Spread~~ set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section ~~2.2(d)(i~~2.2(e)(i) hereof. (eiii) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the shares of each series of ~~AMPS~~ APS for purposes of each Auction. The ~~Company~~ Trust shall use its best efforts to provide or cause to be provided to the Auction Agent ~~within ten Business Days following~~ on the date of the Closing a list of the initial Existing Holders of each series of ~~AMPS~~APS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any shares of ~~AMPS~~ APS to another Person. (fiv) In the event of any partial redemption of any series of ~~AMPS~~APS, upon notice by the ~~Company~~ Trust to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to shares of ~~such~~ the series ~~of AMPS~~ being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of shares of such series of ~~AMPS~~ APS of each such Existing Holder, if any, to be redeemed by the ~~Company~~Trust, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of shares of ~~such~~ the series of ~~AMPS~~ APS shown in the Auction Agent's registry of Existing Holders. (iv) The Auction Agent shall register a transfer of the ownership of shares of a series of ~~AMPS~~ APS from an Existing Holder to another Existing Holder, or to another Person if permitted by the ~~Company~~Trust, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any shares of ~~AMPS~~ APS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of ~~AMPS~~ APS and the seller failed to deliver such shares or (ii) sold any shares of ~~AMPS~~ APS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (gvi) The Auction Agent ~~may, but shall not be obligated, to~~ may request that the ~~Broker-~~Broker Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of shares of ~~any series of AMPS~~APS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the ~~Company; provided~~Trust, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if ~~(i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii)~~ it is advised by its counsel that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agent Agreement (Eaton Vance Tax Advantaged Global Dividend Income Fund)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing shares of AMPS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be ~~changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures~~changed, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 2.04 of the ~~Articles Supplementary~~ Supplemental Indenture concerning Special ~~Dividend~~ Rate Periods and the notification of a Special ~~Dividend~~ Rate Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than ~~9:30 A.M.~~ 10:30 a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate ~~so determined~~ and of the Maximum ~~Applicable Rate~~Rate in effect on such Auction Date. (ii) If the Reference Rate is the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a ~~current~~ registry of the Existing Holders of the ~~shares of each series of AMPS~~ Tortoise Notes (the “Tortoise Note Register”) for purposes of ~~each Auction. The Company~~ Auctions and shall ~~use its best efforts to provide or cause to be provided to~~ indicate thereon the ~~Auction Agent within ten Business Days following the date~~ identity of ~~the Closing a list of the initial Existing Holders of each series of AMPS, and~~ the Broker-Dealer ~~of each~~ that submitted the most recent Order in any Auction, which resulted in such Existing Holder ~~through which~~ continuing to hold or purchase such ~~Existing Holder purchased such shares~~Tortoise Notes. The Auction Agent may ~~rely upon,~~ consider a Broker-Dealer which has submitted an Order as ~~evidence~~ the Existing Holder for the purposes of the ~~identities of~~ Tortoise Note Register; provided, that the ~~Existing Holders, such list, the results of each~~ Auction ~~and notices from any Existing Holder, the~~ Agent ~~Member of any Existing Holder or~~ may request the Broker-Dealer to provide a list of ~~any Existing Holder with respect~~ its customers if in its sole discretion it determines to ~~such Existing Holder's transfer~~ do so. The Auction Agent may conclusively rely upon the information furnished to the Auction Agent by the Broker-Dealer and notices from the Securities Depository regarding the results of ~~any shares of AMPS to another Person~~redemptions or mandatory tenders. (fii) In the event of any partial redemption of ~~any series of AMPS~~Tortoise Notes, upon notice by the Company to the ~~Auction Agent~~ Trustee of such partial ~~redemption~~redemption (delivered at least one day prior to the date a notice of redemption is required to be given to the Holders of Tortoise Notes to be redeemed), the ~~Auction Agent~~ Trustee promptly shall request the Securities Depository to notify ~~the Auction Agent~~ it of the identities of the Agent Members (and the respective numbers of ~~shares~~Tortoise Notes) from the accounts of which ~~shares~~ Tortoise Notes have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the ~~Auction preceding the~~ date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the ~~Auction Agent~~ Trustee shall request each Agent Member so identified to disclose to ~~the Auction Agent~~ it (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ Tortoise Notes are to be redeemed) the number of ~~shares of such series of AMPS~~ Tortoise Notes of each such Existing Holder, if any, to be redeemed by the Company, provided that the ~~Auction Agent~~ Trustee has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. Promptly upon its receipt of such information, the Trustee shall provide such information to the Auction Agent in writing. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ Tortoise Notes shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ Tortoise Notes from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company or other persons as the Company permits. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ Tortoise Notes if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ Tortoise Notes and the seller failed to deliver such ~~shares~~ Tortoise Notes or (ii) sold any ~~shares of AMPS~~ Tortoise Notes and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~Tortoise Notes. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~Tortoise Notes. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (iib) it is advised by its counsel in writing that its failure to do so would be ~~unlawful~~ unlawful, or (~~iii~~c) it is advised by its counsel in writing that failure to do so ~~would~~ could expose the Auction Agent to ~~loss,~~ loss liability, ~~claim,~~ claim or damage ~~or expense~~ for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agency Agreement (Tortoise Energy Infrastructure Corp)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep such list current and accurate and shall indicate thereon, or on a separate list, the identity of each Existing Holder, if any, whose most recent Order was submitted by a Broker-Dealer on such list and resulted in such Existing Holder continuing to hold or purchasing ~~shares of AMPS~~the APS. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of Paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Part I, Section 4 of the ~~Articles Supplementary~~ Certificate of Designation concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the Reference Rate and the Maximum Applicable Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 A.M. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the Reference Rate so determined and of the Maximum Applicable Rate. (ii) If the Reference Rate is the applicable LIBOR Rate and such rate is to be based on rates supplied by LIBOR Dealers and one or more of the LIBOR Dealers shall not provide a quotation for the determination of the applicable LIBOR Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates shall be supplied by the remaining LIBOR Dealer or LIBOR Dealers. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of ~~AMPS~~ the APS by ~~either of the rating agencies~~ S&P (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of ~~paragraph 12~~ Part I, Section 15 of the ~~Articles Supplementary~~Certificate of Designation, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the ~~AMPS~~APS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for ~~AMPS~~ the APS next succeeding such change. The Percentage for the ~~AMPS~~ APS on the date of this Agreement is as specified in ~~paragraph 10(a)(vii)~~ the definition of "Maximum Rate" in Part II of the ~~Articles Supplementary~~Certificate of Designation. The Auction Agent shall be entitled to conclusively rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (e) The Auction Agent shall maintain by series a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ APS for purposes of each Auction. The Company shall use its best efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS~~APS, and the Broker-Dealer of each such Existing Holder through which such Existing Holder purchased such shares. The Auction Agent may conclusively rely upon, as evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing Holder, the Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder with respect to such Existing Holder's transfer of any ~~shares of AMPS~~ APS to another Person. (f) In the event of any partial redemption of any ~~series of AMPS~~APS, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of shares) from the accounts of which shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption, and at least two Business Days prior to the Auction preceding the date of redemption with respect to ~~shares of~~ such ~~series of AMPS~~ APS being partially redeemed, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose shares are to be redeemed) the number of ~~shares of such series of AMPS~~ APS of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ APS shown in the Auction Agent's registry of Existing Holders. (i) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ APS from an Existing Holder to another Existing Holder, or to another Person if permitted by the Company, only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in writing in a notice substantially in the form of Exhibit C to the Broker-Dealer Agreements, by such Existing Holder or by the Agent Member of such Existing Holder. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business Day next preceding the applicable Auction Date. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ APS if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ APS and the seller failed to deliver such shares or (ii) sold any ~~shares of AMPS~~ APS and the purchaser failed to make payment to such Person upon delivery to the purchaser of such shares. (g) The Auction Agent may, but shall not be obligated, to request that the Broker-Dealers, as set forth in Section ~~3.2(c~~2.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of~~ any ~~series of AMPS~~APS. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company; provided, however, that the Auction Agent reserves the right and is authorized to disclose any such information if (i) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such disclosure, (ii) it is advised by its counsel that its failure to do so would be unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it.

Appears in 1 contract

Samples: Auction Agent Agreement (Massachusetts Health & Education Tax Exempt Trust)

Preparation for Each Auction; Maintenance of Registry of Existing Holders. (a) As of the date hereof, the Company shall provide the Auction Agent with a list of the Broker-Dealers and shall ~~cause to be delivered~~ deliver to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent shall keep ~~a list of Broker-Dealers with whom it has signed such Broker-Dealer Agreements, and shall endeavor to keep~~ such list current and accurate and shall indicate ~~thereon, or on a separate list,~~ thereon the identity of each Existing Holder, if any, whose most recent Order was submitted ~~by a Broker-Dealer on such list~~ and resulted in such Existing Holder continuing to hold or ~~purchasing shares of AMPS~~purchase ARP Shares. Not later than five Business Days prior to any Auction Date for which any change in such list of Broker-Dealers is to be effective, the Company shall notify the Auction Agent in writing of such change and, if any such change is the addition of a Broker-Dealer to such list, the Company shall cause to be delivered to the Auction Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer Agreement with each Broker-Dealer prior to the participation of any such Broker-Dealer in any Auction. (b) In the event that the Auction Date for any Auction shall be changed after the Auction Agent shall have given the notice referred to in clause (vii) of ~~Paragraph~~ paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as the Auction Agent reasonably deems practicable, shall give notice of such change to the Broker-Dealers not later than the earlier of 9:15 ~~A.M.~~ a.m. on the new Auction Date or 9:15 ~~A.M.~~ a.m. on the old Auction Date. (c) The provisions contained in ~~paragraph 2~~ Section 4(b) of Part I of the ~~Articles Supplementary~~ Statement concerning Special Dividend Periods and the notification of a Special Dividend Period will be followed by the Company and, to the extent applicable, the Auction Agent, and the provisions contained therein are incorporated herein by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions were set forth fully herein. (i) On each Auction Date, the Auction Agent shall determine the ~~Reference Rate and the~~ Maximum ~~Applicable~~ Rate. If the rate obtained by the Auction Agent is not quoted on an interest or discount basis, the Auction Agent shall convert the quoted rate to an interest rate after consultation with the Company as to the method of such conversion. Not later than 9:30 ~~A.M.~~ a.m. on each Auction Date, the Auction Agent shall notify the Company and the Broker-Dealers of the ~~Reference Rate so determined and of the~~ Maximum ~~Applicable~~ Rate. (iii) If the Reference Rate is the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate and such rate is to be based on rates supplied by ~~LIBOR~~ Commercial Paper Dealers and one or more of the ~~LIBOR~~ Commercial Paper Dealers shall not provide a quotation for the determination of the applicable ~~LIBOR~~ “AA” Composite Commercial Paper Rate, the Auction Agent promptly shall notify the Company so that the Company can determine whether to select a Substitute LIBOR Dealer or Substitute LIBOR Dealers to provide the quotation or quotations not being supplied by any LIBOR Dealer or LIBOR Dealers. The Company promptly shall advise the Auction Agent of any such selection. If the Company does not select any such Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the rates rate shall be ~~supplied~~ determined on the basis of the quotations (or quotation) furnished by the remaining ~~LIBOR Dealer or LIBOR~~ Commercial Paper Dealer(s), if any, or, if there are no such Commercial Paper Dealers, by a nationally recognized dealer in commercial paper of such issuers then making such quotations selected by the Company. (iii) If, after the date of this Agreement, there is any change in the prevailing rating of AMPS by either of the rating agencies (or Substitute Rating Agency or successor rating agency) referred to in the definition of the Maximum Applicable Rate, subject to the provisions of paragraph 12 of the Articles Supplementary, thereby resulting in any change in the corresponding applicable percentage or corresponding applicable spread for the AMPS, as set forth in said definition (the "Percentage or Spread"), the Company shall notify the Auction Agent in writing of such change in the Percentage or Spread prior to 9:00 A.M. on the Auction Date for AMPS next succeeding such change. The Percentage for the AMPS on the date of this Agreement is as specified in paragraph 10(a)(vii) of the Articles Supplementary. The Auction Agent shall be entitled to rely on the last Percentage or Spread of which it has received notice from the Company (or, in the absence of such notice, the Percentage or Spread set forth in the preceding sentence) in determining the Maximum Applicable Rate as set forth in Section 2.2(d)(i) hereof. (ei) The Auction Agent shall maintain ~~by series~~ a current registry of the Existing Holders of the ~~shares of each series of AMPS~~ ARP Shares for purposes of each ~~Auction~~individual Auction based on the information provided to it from time to time by the Broker-Dealers. The Company shall use ~~its best~~ commercially reasonable efforts to provide or cause to be provided to the Auction Agent within ten Business Days following the date of the Closing a list of the initial Existing Holders of ~~each series of AMPS,~~ ARP Shares and the ~~Broker-Dealer~~ number of shares purchased by each such Existing ~~Holder through which such Existing Holder purchased such shares~~Holder. The Auction Agent may rely upon, as conclusive evidence of the identities of the Existing Holders, such list, the results of each Auction and notices from any Existing ~~Holder,~~ Holder or the Agent Member ~~of any Existing Holder or the Broker-Dealer~~ of any Existing Holder with respect to such Existing Holder's ’s transfer of any ~~shares of AMPS~~ ARP Shares to another Person. (fii) In the event of any partial redemption of ~~any series of AMPS~~ARP Shares, upon notice by the Company to the Auction Agent of such partial redemption, the Auction Agent promptly shall request the Securities Depository to notify the Auction Agent of the identities of the Agent Members (and the respective numbers of ~~shares~~ARP Shares) from the accounts of which ~~shares~~ ARP Shares have been called for redemption and the person or department at such Agent Member to contact regarding such redemption~~, and at~~ . At least two Business Days prior to the Auction preceding the date of ~~redemption with respect to shares of such series of AMPS being partially redeemed~~redemption, the Auction Agent shall request each Agent Member so identified to disclose to the Auction Agent (upon selection by such Agent Member of the Existing Holders whose ~~shares~~ ARP Shares are to be redeemed) the number of ~~shares of such series of AMPS~~ ARP Shares of each such Existing Holder, if any, to be redeemed by the Company, provided that the Auction Agent has been furnished with the name and telephone number of a person or department at such Agent Member from which it is to request such information. In the absence of receiving any such information with respect to an Existing Holder, from such Existing Holder's ’s Agent Member or otherwise, the Auction Agent may continue to treat such Existing Holder as having ownership of the number of ~~shares of such series of AMPS~~ ARP Shares shown in the Auction Agent's ’s registry of Existing Holders. (iiii) The Auction Agent shall register a transfer of the ownership of ~~shares of a series of AMPS~~ ARP Shares from an Existing Holder to another Existing ~~Holder, or to another Person if permitted by the Company,~~ Holder only if (A) such transfer is made pursuant to an Auction or (B) if such transfer is made other than pursuant to an Auction, the Auction Agent has been notified of such transfer in ~~writing~~ writing, in a notice substantially in the form of Exhibit C to the Broker-Dealer ~~Agreements~~Agreement, by such Existing Holder or by the Agent Member of such Existing ~~Holder~~Holder only to or through a Broker-Dealer that has entered into a Broker-Dealer Agreement with the Auction Agent and the Company. The Auction Agent is not required to accept any notice of transfer delivered for an Auction unless it is received by the Auction Agent by 3:00 ~~P.M.~~ p.m. on the Business Day ~~next~~ preceding the ~~applicable Auction Date~~Auction. The Auction Agent shall rescind a transfer made on the registry of the Existing Holders of any ~~shares of AMPS~~ ARP Shares if the Auction Agent has been notified in writing, in a notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that (i) purchased any ~~shares of AMPS~~ ARP Shares and the seller failed to deliver such ~~shares~~ ARP Shares or (ii) sold any ~~shares of AMPS~~ ARP Shares and the purchaser failed to make payment to such Person upon delivery to the purchaser of such ~~shares~~ARP Shares. (gf) The Auction Agent may, but shall ~~not be obligated~~have no obligation to, to request that the Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent with a list of their respective customers that such Broker-Dealers believe are Beneficial Owners of ~~shares of any series of AMPS~~ARP Shares. The Auction Agent shall keep confidential any such information and shall not disclose any such information so provided to any Person other than the relevant Broker-Dealer and the Company~~; provided~~, ~~however,~~ provided that the Auction Agent reserves the right ~~and is authorized~~ to disclose any such information if (ia) it is ordered to do so by a court of competent jurisdiction or a regulatory body, judicial or quasi-judicial agency or authority having the authority to compel such ~~disclosure,~~ disclosure or (iib) it is advised by its counsel in writing that its failure to do so would be ~~unlawful or (iii) failure to do so would expose the Auction Agent to loss, liability, claim, damage or expense for which it has not received indemnity or security satisfactory to it~~unlawful.

Appears in 1 contract

Samples: Auction Agency Agreement (Kayne Anderson Energy Total Return Fund, Inc.)

Common use of Preparation for Each Auction; Maintenance of Registry of Existing Holders Clause in Contracts