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Exhibit 13(c)
BROKER-DEALER AGREEMENT
between
IBJ XXXXXXXX BANK & TRUST COMPANY
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Dated as of April 10, 1992
Relating to
AUCTION MARKET PREFERRED STOCK(R)
("AMPS"(R))
Series A and Series B
of
MUNIYIELD NEW YORK INSURED FUND, INC.
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(R) Registered trademark of Xxxxxxx Xxxxx & Co., Inc.
BROKER-DEALER AGREEMENT dated as of April 10, 1992 between IBJ Xxxxxxxx
Bank & Trust Company, a New York banking corporation (the "Auction Agent") (not
in its individual capacity but solely as agent of MuniYield New York Insured
Fund, Inc., a Maryland corporation (the "Company"), pursuant to authority
granted to it in the Auction Agent Agreement dated as of April 10, 1992, between
the Company and the Auction Agent (the "Auction Agent Agreement")) and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (together with its successors and
assigns hereinafter referred to as "BD").
The Company has duly authorized and issued 850 shares of Auction Market
Preferred Stock(R), Series A ("Series A AMPS") and 850 shares of Auction Market
Preferred Stock, Series B ("Series B AMPS"), both with a par value $.10 per
share, liquidation preference $50,000 per share plus accumulated but unpaid
dividends (whether or not earned or declared), each pursuant to the Company's
Articles Supplementary (as defined below). The Series A AMPS and Series B AMPS
are sometimes referred to together herein as "AMPS".
The Company's Articles Supplementary provide that the dividend rate on
each series of AMPS for each Dividend Period therefor after the Initial Dividend
Period shall be the Applicable Rate therefor, which in each case, in general,
shall be the rate per annum that a commercial bank, trust company or other
financial institution appointed by the Company advises results from
implementation of the Auction Procedures (as defined below). The Board of
Directors of the Company has adopted a resolution appointing IBJ Xxxxxxxx Bank &
Trust Company as Auction Agent for purposes of the Auction Procedures, and
pursuant to Section 2.5(d) of the Auction Agent Agreement, the Company has
requested and directed the Auction Agent to execute and deliver this Agreement.
The Auction Procedures require the participation of one or more
Broker-Dealers.
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(R) Registered trademark of Xxxxxxx Xxxxx & Co., Inc.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the Auction Agent and BD agree as follows:
1. Definitions and Rules of Construction.
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1.1 Terms Defined by Reference to the Articles Supplementary. Capitalized
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terms not defined herein shall have the respective meanings specified in the
Articles Supplementary of the Company.
1.2 Terms Defined Herein. As used herein and in the Settlement Procedures
(as defined below), the following terms shall have the following meanings,
unless the context otherwise requires:
(a) "Articles Supplementary" shall mean the Articles Supplementary, as
amended, of the Company, establishing the powers, preferences and rights of the
AMPS filed on April 7, 1992 in the office of the State Department of Assessments
and Taxation of the State of Maryland.
(b) "Auction" shall have the meaning specified in Section 3.1 hereof.
(c) "Auction Procedures" shall mean the Auction Procedures that are set
forth in Paragraph 11 of the Articles Supplementary.
(d) "Authorized Officer" shall mean each Senior Vice President, Vice
President, Assistant Vice President, Trust Officer, Assistant Secretary and
Assistant Treasurer of the Auction Agent assigned to its Corporate Trust and
Agency Group and every other officer or employee of the Auction Agent designated
as an "Authorized Officer" for purposes of this Agreement in a communication to
BD.
(e) "BD Officer" shall mean each officer or employee of BD designated as a
"BD Officer" for purposes of this Agreement in a communication to the Auction
Agent.
(f) "Broker-Dealer Agreement" shall mean this Agreement and any
substantially similar agreement between the Auction Agent and a Broker-Dealer.
(g) "Purchaser's Letter" shall mean a letter addressed to the Company, the
Auction Agent and a Broker-Dealer, substantially in the form attached hereto as
Exhibit A.
(h) "Settlement Procedures" shall mean the Settlement Procedures attached
hereto as Exhibit B.
1.3 Rules of Construction. Unless the context or use indicates another or
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different meaning or intent, the following rules shall apply to the construction
of this Agreement:
(a) Words importing the singular number shall include the plural number and
vice versa.
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(b) The captions and headings herein are solely for convenience of
reference and shall not constitute a part of this Agreement nor shall they
affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto," and other words of similar
import refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to New York
City time.
2. Notification of Dividend Period and Advance Notice of Allocation of
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Taxable Income.
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(a) The provisions contained in paragraph 2 of the Articles Supplementary
concerning the notification of a Special Dividend Period will be followed by the
Auction Agent and BD 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 fully set forth herein.
(b) Whenever the Company intends to include any net capital gains or other
taxable income in any dividend on shares of any series 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, it will in turn notify BD, who, on or prior to such Auction Date, will
notify its Existing Holders and Potential Holders believed to be interested in
submitting an Order in the Auction to be held on such Auction Date.
3. The Auction.
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3.1 Purpose; Incorporation by Reference of Auction Procedures and
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Settlement Procedures.
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(a) On each Auction Date, the provisions of the Auction Procedures will be
followed by the Auction Agent for the purpose of determining the Applicable Rate
for each series of AMPS, for the next Dividend Period therefor. Each periodic
operation of such procedures is hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures and the
Settlement Procedures 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. fully set forth herein.
(c) BD is delivering herewith a Purchaser's Letter executed by BD and, in
the case of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, a list of
persons to whom BD will initially sell the shares of each series of AMPS, the
number of shares of each series of AMPS BD will sell to each such person and the
number of shares of each series of AMPS BD will hold for its own account. BD
agrees to act as, and assumes the obligations of and limitations and
restrictions placed upon, a Broker-Dealer under this Agreement. BD understands
that other Persons meeting the requirements specified in the definition of
"Broker-Dealer" contained in Paragraph I of the
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Articles Supplementary may execute a Broker-Dealer Agreement and a Purchaser's
Letter and participate as Broker-Dealers in Auctions.
(d) BD and other Broker-Dealers may participate in Auctions for their own
accounts, provided that BD or such other BrokerDealers, as the case may be, has
executed a Purchaser's Letter. However, the Company may by notice to BD and all
other Broker-Dealers prohibit all Broker-Dealers from submitting Bids in
Auctions for their own accounts, provided that Broker-Dealers may continue to
submit Hold Orders and Sell Orders.
3.2 Preparation for Each Auction.
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(a) Not later than 9:30 A.M. on each Auction Date for the AMPS, the Auction
Agent shall advise BD by telephone of the Reference Rate and the Maximum
Applicable Rate in effect on such Auction Date.
(b) In the event that the Auction Date for any Auction shall be changed
after the Auction Agent has 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 BD 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. Thereafter, BD shall promptly notify customers of BD that BD
believes are Existing Holders of shares of AMPS of such change in the Auction
Date.
(c) The Auction Agent from time to time may request BD to provide it with a
list of the respective customers BD believes are Existing Holders of shares of
each series of AMPS. BD shall comply with any such request, and the Auction
Agent shall keep confidential any such information, including information
received as to the identity of Bidders in any Auction, and shall not disclose
any such information so provided to any Person other than the Company; and such
information shall not be used by the Auction Agent or its officers, employees,
agents or representatives for any purpose other than such purposes as are
described herein. The Auction Agent shall transmit any list of customers BD
believes are Existing Holders of shares of each series of AMPS and information
related thereto only to its officers, employees, agents or representatives in
the Corporate Trust and Agency Group who need to know such information for the
purposes of acting in accordance with this Agreement and shall prevent the
transmission of such information to others and shall cause its officers,
employees, agents and representatives to abide by the foregoing confidentiality
restrictions; provided, however, that the Auction Agent shall have no
responsibility or liability for the actions of any of its officers, employees,
agents or representatives after they have left the employ of the Auction Agent.
(d) The Auction Agent is not required to accept the Purchaser's Letter for
any Potential Holder for an Auction unless it is received by the Auction Agent
by 3:00 P.M. on the Business Day next preceding such Auction.
3.3 Auction Schedule; Method of Submission of Orders.
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(a) The Company and the Auction Agent shall conduct Auctions for each
series of AMPS in accordance with the schedule set forth below. Such schedule
may be changed at any time by the Auction Agent with the consent of the Company,
which consent shall not be unreasonably withheld. The Auction Agent shall give
notice of any such change to BD. Such
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notice shall be received prior to the first Auction Date on which any such
change shall be effective.
Time Event
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By 9:30 A.M. Auction Agent advises the Company and Broker-Dealers
of Reference Rate and the Maximum Applicable Rate as
set forth in Section 3.2(a) hereof.
9:30 A.M. - 1:00 P.M. Auction Agent assembles information communicated to
it by Broker-Dealers as provided in Paragraph
11(c)(i) of the Articles Supplementary. Submission
Deadline is 1:00 P.M.
Not earlier than Auction Agent makes determinations pursuant to
1:00 P.M. Paragraph 11(d)(i) of the Articles Supplementary.
By approximately Auction Agent advises Company of results of Auction
3:00 P.M. as provided in Paragraph 11(d)(ii) of the Articles
Supplementary.
Submitted Bids and Submitted Sell Orders are
accepted and rejected in whole or in part and shares
of AMPS are allocated as provided in Paragraph 11(e)
of the Articles, Supplementary.
By approximately 10:00 Auction Agent gives notice of Auction results as set
A.M. on the next forth in Section 3.4(a) hereof.
succeeding Business Day
(b) BD agrees to maintain a list of Potential Holders and to contact the
Potential Holders on such list on or prior to each Auction Date for the purposes
set forth in Paragraph 11 of the Articles Supplementary.
(c) BD agrees not to sell, assign or dispose of any shares of any series
of AMPS, to any Person who has not delivered a signed Purchaser's Letter to the
Auction Agent.
(d) BD shall submit orders to the Auction Agent in writing in
substantially the form attached hereto as Exhibit C. BD shall submit separate
Orders to the Auction Agent for each Potential Holder or Existing Holder on
whose behalf BD is submitting an Order and shall not net or aggregate the Orders
of Potential Holders or Existing Holders on whose behalf BD is submitting
orders.
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(e) BD shall deliver to the Auction Agent (i) a written notice,
substantially in the form attached hereto as Exhibit D, of transfers of shares
of any series of AMPS, made through BD by an Existing Holder to another Person
other than pursuant to an Auction, and (ii) a written notice, substantially in
the form attached hereto as Exhibit E, of the failure of shares of any series of
AMPS to be transferred to or by any Person that purchased or sold shares of any
series of AMPS or through BD pursuant to an Auction. The Auction Agent is not
required to accept any notice delivered pursuant to the terms of the foregoing
sentence with respect to 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.
3.4 Notice of Auction Results.
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(a) On each Auction Date, the Auction Agent shall notify BD by telephone
as set forth in paragraph (a) of the Settlement Procedures. On the Business Day
next succeeding such Auction Date, the Auction Agent shall notify BD in writing
of the disposition of all Orders submitted by BD in the Auction held on such
Auction Date.
(b) BD shall notify each Existing Holder or Potential Holder on whose
behalf BD has submitted an order as set forth in paragraph (b) of the Settlement
Procedures and take such other action as is required of BD pursuant to the
Settlement Procedures.
If any Existing Holder selling shares of any series of AMPS in an Auction
fails to deliver such shares, the BD of any Person that was to have purchased
shares of such series of AMPS in such Auction may deliver to such Person a
number of whole shares of such series of AMPS that is less than the number of
shares that otherwise was to be purchased by such Person. In such event, the
number of shares of such series of AMPS to be so delivered shall be determined
by such BD. Delivery of such lesser number of shares shall constitute good
delivery. Upon the occurrence of any such failure to deliver shares, such BD
shall deliver to the Auction Agent the notice required by Section 3.3(e)(ii)
hereof. Notwithstanding the foregoing terms of this Section 3.4(b), any delivery
or non-delivery of shares of any series of AMPS which represents any departure
from the results of an Auction, as determined by the Auction Agent, shall be of
no effect unless and until the Auction Agent shall have been notified of such
delivery or non-delivery in accordance with the terms of Section 3.3(e) hereof.
The Auction Agent shall have no duty or liability with respect to enforcement of
this Section 3.4(b).
3.5 Service Charge to Be Paid to BD. On the Business Day next succeeding
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each Auction Date, the Auction Agent shall pay to BD, from moneys received from
the Company an amount equal to: (a) in the case of any Auction Date immediately
preceding a 7-day Dividend Period, a 28-day Dividend Period or Short Term
Dividend Period, the product of (i) a fraction the numerator of which is the
number of days in such Dividend Period (calculated by counting the first day of
such Dividend Period but excluding the last day thereof) and the denominator of
which is 360, times (ii) 1/4 of 1%, times (iii) $50,000, times (iv) the sum of
(A) the aggregate number of AMPS placed by BD in the applicable Auction that
were (x) the subject of a Submitted Bid of an Existing . Holder submitted by BD
and continued to be held as a result of such submission and (y) the subject of a
Submitted Bid of a Potential Holder submitted by BD and were purchased as a
result of such submission plus (B) the aggregate number of AMPS subject to valid
Hold Orders (determined in accordance with Paragraph 11 of the Articles
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Supplementary) submitted to the Auction Agent by BD plus (C) the number of AMPS
deemed to be subject to Hold orders by Existing Holders pursuant to Paragraph 11
of the Articles Supplementary that were acquired by such Existing Holders
through BD and (b) in the case of any Auction Date immediately preceding a Long
Term Dividend Period, that amount as mutually agreed upon by the Company and BD,
based on the selling concession that would be applicable to an underwriting of
fixed or variable rate preferred shares with a similar final maturity or
variable rate dividend period, at the commencement of such Long Term Dividend
Period.
For purposes of subclause (a)(iv)(C) of the foregoing sentence, if any
Existing Holder who acquired shares of any series of AMPS through BD transfers
those shares to another Person other than pursuant to an Auction, then the
Broker-Dealer for the shares so transferred shall continue to be BD, provided,
however, that if the transfer was effected by,, or if the transferee is, a
Broker-Dealer other than BD, then such Broker-Dealer shall be the Broker-Dealer
for such shares.
4. The Auction Agent.
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4.1 Duties and Responsibilities.
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(a) The Auction Agent is acting solely as agent for the Company hereunder
and owes no fiduciary duties to any other Person by reason of this Agreement.
(b) The Auction Agent undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the Auction
Agent shall not be liable for any action taken, suffered, or omitted or for any
error of judgment made by it in the performance of its duties under this
Agreement. The Auction Agent shall not be liable for any error of judgment made
in good faith unless the Auction Agent shall have been negligent in ascertaining
(or failing to ascertain) the pertinent facts.
4.2 Rights of the Auction Agent.
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(a) The Auction Agent may rely and shall be protected in acting or
refraining from acting upon any communication authorized by this Agreement and
upon any written instruction, notice, request, direction, consent, report,
certificate, share certificate or other instrument, paper or document believed
by it to be genuine. The Auction Agent shall not be liable for acting upon any
telephone communication authorized by this Agreement which the Auction Agent
believes in good faith to have been given by the Company or by a Broker-Dealer.
The Auction Agent may record telephone communications with the Broker-Dealers.
(b) The Auction Agent may consult with counsel of its own choice, and the
advice of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
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(c) The Auction Agent shall not be required to advance, expend or risk
its own funds or otherwise incur or become exposed to financial liability in the
performance of its duties hereunder.
(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys.
4.3 Auction Agent's Disclaimer. The Auction Agent makes no representation
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as to the validity or adequacy of this Agreement or the AMPS.
5. Miscellaneous.
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5.1 Termination. Any party may terminate this Agreement at any time upon
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five days' prior notice to the other party; provided, however, that if BD is
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, neither BD nor the Auction
Agent may terminate this Agreement without first obtaining prior written consent
of the Company of such termination, which consent shall not be unreasonably
withheld.
5.2 Participant in Securities Depository: Payment of Dividends in
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Same-Day Funds.
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(a) BD is, and shall remain for the term of this Agreement, a member of,
or participant in, the Securities Depository (or an affiliate of such a member
or participant).
(b) BD represents that it (or if such BD does not act as Agent Member,
one of its affiliates) shall make all dividend payments on the AMPS available in
same-day funds on each Dividend Payment Date to customers that use such BD or
affiliate as Agent Member.
5.3 Agent Member. At the date hereof, BD is a participant of the
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Securities Depository.
5.4 Communications. Except for (i) communications authorized to be made
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by telephone pursuant to this Agreement or the Auction Procedures and (ii)
communications in connection with the Auctions (other than those expressly
required to be in writing), all notices, requests and other communications to
any party hereunder shall be in writing (including telecopy or similar writing)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to XX Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
addressed: Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center - Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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If to the Auction IBJ Xxxxxxxx Bank & Trust Company
Agent, addressed: Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Window Subcellar 1
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
or such other address or telecopy number as such party may hereafter specify for
such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of BD by a BD officer and on behalf of
the Auction Agent by an Authorized officer. BD may record telephone
communications with the Auction Agent.
5.5 Entire Agreement. This Agreement contains the entire agreement
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between the parties relating to the subject matter hereof, and there are no
other representations, endorsements, promises, agreements or understandings,
oral, written or inferred ' between the parties relating to the subject matter
hereof.
5.6 Benefits. Nothing in this Agreement, express or implied, shall give
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to any person, other than the Company, the Auction Agent and BD and their
respective successors and assigns, any benefit of any legal or equitable right,
remedy or claim under this Agreement.
5.7 Amendment; Waiver.
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(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged.
(b) Failure of either party to this Agreement to exercise any right or
remedy hereunder in the event of a breach of this Agreement by the other party
shall not constitute a waiver of any such right or remedy with respect to any
subsequent breach.
5.8 Successors and Assigns. This Agreement shall be binding upon, inure
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to the benefit of, and be enforceable by, the respective successors and
permitted assigns of each of BD and the Auction Agent. This Agreement may not be
assigned by either party hereto absent the prior written consent of the other
party; provided, however, that this Agreement may be assigned by the Auction
Agent to a successor Auction Agent selected by the Company without the consent
of BD.
5.9 Severability. If any clause, provision or section of this Agreement
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shall be ruled invalid or unenforceable by any court of competent jurisdiction,
the invalidity or unenforceability of such clause, provision or section shall
not affect any remaining clause, provision or section hereof.
5.10 Execution in Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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6. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New York applicable to agreements made
and to be performed in said State.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
IBJ XXXXXXXX BANK & TRUST COMPANY
By:
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Title:
Assistant Vice President
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
----------------------------------------
Title:
10
EXHIBIT A
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TO BE SUBMITTED TO YOUR BROKER-DEALER WHO WILL THEN
DELIVER COPIES ON YOUR BEHALF TO THE RESPECTIVE TRUST
COMPANY OR RETMARKETING AGENT
MASTER PURCHASER'S LETTER
Relating to
Securities Involving Rate Settings Through Auctions or Remarketings
THE COMPANY
A REMARKETING AGENT
THE TRUST COMPANY
BROKER-DEALER
AN AGENT MEMBER
OTHER PERSONS
Dear Sirs:
1. This letter is designed to apply to publicly or privately offered
debt or equity securities ("Securities") of any issuer ("Company") which are
described in any final prospectus or other offering materials relating to such
Securities as the same may be amended or supplemented (collectively, with
respect to the particular Securities concerned, the "Prospectus") and which
involve periodic rate settings through auctions ("Auctions") or remarketing
procedures ("Remarketings"). This letter shall be for the benefit of any Company
and of any trust company, auction agent, paying agent (collectively, "trust
company"), remarketing agent, broker-dealer, agent member, securities depository
or other interested person in connection with any Securities and related
Auctions or Remarketings (it being understood that such persons may be required
to execute specified agreements and nothing herein shall alter such
requirements). The terminology used herein is intended to be general in its
application and not to exclude any Securities in respect of which (in the
Prospectus or otherwise) alternative terminology is used.
2. We may from time to time offer to purchase, purchase, offer to sell
and/or sell Securities of any Company as described in the Prospectus relating
thereto. We agree that this letter shall apply to all such purchases, sales and
offers and to Securities owned by us. We understand that the dividend/interest
rate on Securities may be based from time to time on the results of Auctions or
Remarketings as set forth in the Prospectus.
3. We agree that any bid or sell order placed by us in an Auction or a
Remarketing shall constitute an irrevocable offer (except is otherwise described
in the Prospectus) by us to purchase or sell the Securities subject to such bid
or sell order, or such lesser amount of Securities as we shall be required to
sell or purchase as a result of such Auction or Remarketing, at the applicable
price, all as set forth in the Prospectus, and that if we fail to place a bid or
sell order with respect to Securities owned by us with a broker-dealer on any
Auction or Remarketing date, or a broker-dealer to which we communicate a bid or
sell order fails to submit such bid or sell order to the trust company or
remarketing agent concerned, we shall be deemed to have placed a hold order with
respect to such Securities as described in the Prospectus. We authorize any
broker-dealer that submits a bid or sell order as our agent in Auctions or
Remarketings to execute contracts for the sale of Securities covered by such bid
or sell order. We recognize that the payment by such broker-dealer for
Securities purchased on our behalf shall not relieve us of any liability to such
broker-dealer for payment for such Securities.
4. We understand that in a Remarketing, the dividend or interest rate
or rates on the Securities and the allocation of Securities tendered for sale
between dividend or interest periods of different lengths will be based from
time to time on the determinations of one or more remarketing agents, and we
agree to be conclusively bound by such determinations. We further agree to the
payment of different dividend or interest rates to different holders of
Securities depending on the length of the dividend or interest period elected by
such holders. We agree that any notice given by us to a remarketing agent (or to
a broker-dealer for transmission to a remarketing agent) of our desire to under
Securities in a Remarketing shall constitute an irrevocable (except to the
limited extent set forth I n the Prospectus) offer by us to sell the Securities
specified in such notice, or such lesser number of Securities as we shall be
required to sell as a result of such Remarketing, in accordance with the terms
set forth in the Prospectus. and we authorize the remarketing agent to sell,
transfer or otherwise dispose of such Securities as set forth in the Prospectus.
5. We agree that, during the applicable period as described in the
Prospectus, dispositions of Securities can be made only in the denominations set
forth in the Prospectus and we will sell, transfer or otherwise dispose of any
Securities held by us from time to time only pursuant to a bid or sell order
placed in an Auction, in a Remarketing', to or through a broker-dealer or, when
permitted in the Prospectus, to a person that has signed and delivered to the
applicable trust company or a remarketing agent a letter substantially in the
form of this letter (or other applicable purchaser's letter), provided that in
the case of all transfers other than pursuant to Auctions or Remarketings we or
our broker-dealer or our agent member shall advise such trust company or a
remarketing agent of such transfer. We understand that a restrictive legend will
be placed on certificates representing the Securities and stop-transfer
instructions will be issued to the transfer agent and/or registrar, all as set
forth 1-11 the Prospectus.
6. We agree that, during the applicable period as described in the
Prospectus, ownership of Securities shall be represented by one or more global
certificates registered in the name of the applicable securities depository or
its nominee, that we will not be entitled to receive any certificate
representing the Securities and that our ownership of any Securities will be
maintained in book entry form by the securities depository for the account of
our agent member, which in turn will maintain records of our beneficial
ownership. We authorize and instruct our agent member to disclose to the
applicable trust company or remarketing agent such information concerning our
beneficial ownership of Securities as such trust company or remarketing agent
shall request.
7. We acknowledge that partial deliveries of Securities purchased in
Auctions or Remarketings may be made to us and such deliveries shall constitute
good delivery as set forth in the Prospectus.
8. This letter is not a commitment by us to purchase any Securities.
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9. This letter supersedes any prior-dated version of this master
purchaser's letter, and supplements any prior or post-dated purchaser's letter
specific to particular Securities, and this letter may only be revoked by a
signed writing delivered to the original recipients hereof.
10. The descriptions of Auction or Remarketing procedures set forth in
each applicable Prospectus are incorporated by reference herein and in case of
any conflict between this letter, any purchaser's letter specific to particular
Securities and any such description, such description shall control.
11. Any xerographic or other copy of this letter shall be deemed of
equal effect as a signed original.
12. Our agent member of The Depository Trust Company currently is
13. Our personnel authorized to place orders with broker-dealers for
the purposes set forth in the Prospectus in Auctions or Remarketings currently
is/are _______________ telephone number ( ) .
14. Our taxpayer identification number is
15. In the case of each offer to purchase, purchase, offer to sell or
sale by us of Securities not registered under the Securities Act of 1933, as
amended (the "Act"), we represent and agree as follows:
A. We understand and expressly acknowledge that. the
Securities have not been and will not be registered under the Act and,
accordingly, that the Securities may not be reoffered, resold or
otherwise pledged, hypothecated or transferred unless an applicable
exemption from the registration requirements of the Act is available.
B. We hereby confirm that any purchase of Securities made by
us will be for our own account, or for the account of one or more
parties for which we are acting as trustee or agent with complete
investment discretion and with authority to bind such parties, and not
with a view to any public resale or distribution thereof. We and each
other party for which we are acting which will acquire Securities will
be "accredited investors" within the meaning of Regulation D under the
Act with respect to the Securities to be purchased by us or such party,
as the case may be, will have previously invested in similar types of
instruments and will be able and prepared to bear the economic risk of
investing in and holding such Securities.
C. We acknowledge that prior to purchasing any Securities we
shall have received a Prospectus (or private placement memorandum) with
respect thereto and acknowledge that we will have had access to such
financial and other information, and have been afforded the opportunity
to ask such questions of representatives of the Company and receive
answers thereto, as we deem necessary in connection with our decision
to purchase Securities.
D. We recognize that the Company and broker-dealers will rely
upon the truth and accuracy of the foregoing investment representations
and agreements, and we
3
agree that each of our purchases of Securities now or in the future shall be
deemed to constitute our concurrence in all of the foregoing which shall be
binding on us and each party for which we are acting as set forth in
Subparagraph B above.
---------------------------------------
(Name of Purchaser)
By
-------------------------------------
Printed Name:
Title:
Dated:
----------------------
Mailing Address of Purchaser
----------------------------
----------------------------
----------------------------
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4
EXHIBIT B
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SETTLEMENT PROCEDURES
The following summary of Settlement Procedures sets forth the procedures
expected to be followed in connection with the settlement of each Auction and
will be incorporated by reference in the Auction Agent Agreement and each
Broker-Dealer Agreement. Nothing contained in this Appendix C constitutes a
representation by the Fund that in each Auction each party referred to herein
will actually perform the procedures described herein to be performed by such
party. Capitalized terms used herein shall have the respective meanings
specified in the glossary of this Prospectus or Appendix D hereto, as the case
may be.
(a) On each Auction Date, the Auction Agent shall notify by telephone or
through the Auction Agent's Processing System the Broker-Dealers that
participated in the Auction held on such Auction Date and submitted an Order on
behalf of any Existing Holder or Potential Holder of:
(i) the Applicable Rate fixed for the next succeeding Dividend
Period;
(ii) whether Sufficient Clearing Bids existed for the determination
of the Applicable Rate;
(iii) if such Broker-Dealer (a "Seller's Broker-Dealer") submitted a
Bid or a Sell Order on behalf of an Existing Holder, the number of shares,
if any, of AMPS to be sold by such Existing Holder;
(iv) if such Broker-Dealer (a "Buyer's Broker-Dealer") submitted a
Bid on behalf of a Potential Holder. the number of shares, if any, of AMPS
to be purchased by such Potential Holder;
(v) if the aggregate number of shares of AMPS to be sold by all
Existing Holders on whose behalf such Broker-Dealer submitted a Bid or a
Sell Order exceeds the aggregate number of shares of AMPS to be purchased
by all potential Holders on whose behalf such Broker-Dealer submitted a
Bid, the name or names of one or more Buyer's Broker-Dealers (and the name
of the Agent Member, if any, of each such Buyer's Broker-Dealer) acting for
one or more purchasers of such excess number of shares of AMPS and the
number of such shares to be purchased from one or more Existing Holders on
whose behalf such Broker-Dealer acted by one or more Potential Holders on
whose behalf each of such Buyer's Broker-Dealers acted;
(vi) if the aggregate number of shares of AMPS to be purchased by all
Potential Holders on whose behalf such Broker-Dealer submitted a Bid
exceeds the aggregate number of shares of AMPS to be sold by all Existing
Holders on whose behalf such Broker-Dealer submitted a Bid or a Sell Order,
the name or names of one or more Seller's Broker-Dealers (and the name of
the Agent Member, if any, of each such Seller's Broker-Dealer) acting for
one or more sellers of such excess number of shares of AMPS and the number
of such shares to be sold to one or more Potential Holders on whose
behalf such BrokerDealer acted by one or more Existing Holders on whose
behalf each of such Seller's Broker-Dealers acted; and
(vii) the Auction Date of the next succeeding Auction with respect to
the AMPS.
(b) On each Auction Date, each Broker-Dealer that submitted an Order on
behalf of any Existing Holder or Potential Holder shall:
(i) in the case of a Broker-Dealer that is a Buyer's Broker-Dealer,
instruct each Potential Holder on whose behalf such Broker-Dealer submitted
a Bid that was accepted, in whole or in part to instruct such Potential
Holder's Agent Member to pay to such Broker-Dealer (or its Agent Member)
through the Securities Depository the amount necessary to purchase the
number of shares of AMPS to be purchased pursuant to such Bid against
receipt of such shares and advise such Potential Holder of the Applicable
Rate for the next succeeding Dividend Period; I .
(ii) in the case of a Broker-Dealer that is a Seller's Broker-Dealer,
instruct each Existing Holder on whose behalf such Broker-Dealer submitted
a Sell Order that was accepted, in whole or in part, or a Bid that was
accepted, in whole or in part, to instruct such Existing Holder's Agent
Member to deliver to such Broker-Dealer (or its Agent Member) through the
Securities Depository the number of shares of AMPS to be sold pursuant to
such Order against payment therefor and advise any such Existing Holder
that will continue to hold shares of AMPS of the Applicable Rate for the
next succeeding Dividend Period;
(iii) advise each Existing Holder on whose behalf such Broker-Dealer
submitted a Hold Order of the Applicable Rate for the next succeeding
Dividend Period;
(iv) advise each Existing Holder on whose behalf such Broker-Dealer
submitted an Order of the Auction Date for the next succeeding Auction; and
(v) advise each Potential Holder on whose behalf such Broker-Dealer
submitted a Bid that was accepted, in whole or in part, of the Auction Date
for the next succeeding Action.
(c) On the basis of the information provided to it pursuant to (a) above,
each Broker-Dealer that submitted a Bid or a Sell Order on behalf of a Potential
Holder or an Existing Holder shall, in such manner and at such time or times as
in its sole discretion it may determine, allocate any funds received by it
pursuant to (b)(i) above and any shares of AMPS received by it pursuant to
(b)(ii) above among the Potential Holders, if any, on whose behalf such
Broker-Dealer submitted Bids, the Existing Holders, if any, on whose behalf such
Broker-Dealer submitted Bids that were accepted or Sell Orders, and any
Broker-Dealer or BrokerDealers identified to it by the Auction Agent pursuant to
(a)(v) or (a)(vi) above.
(d) On each Auction Date:
(i) each Potential Holder and Existing Holder shall instruct its
Agent Member as provided in (b)(i) or (ii) above, as he case may be;
2
(ii) each Seller's Broker-Dealer which is not an Agent Member of the
Securities Depository shall instruct its Agent Member to (A) pay through
the Securities Depository to the Agent Member of the Existing Holder
delivering shares to such Broker-Dealer pursuant to (b)(ii) above the
amount necessary to purchase such shares against receipt of such shares,
and (B) deliver such shares through the Securities Depository to a Buyer's
Broker-Dealer (or its Agent Member) identified to such Seller's
Broker-Dealer pursuant to (a)(v) above against payment therefor; and
(iii) each Buyer's Broker-Dealer which is not an Agent Member of the
Securities Depository shall instruct its Agent Member to (A) pay through
the Securities Depository to a Seller's Broker-Dealer (or its Agent Member)
identified pursuant to (a)(vi) above the amount necessary to purchase the
shares to be purchased pursuant to (b)(i) above against receipt of such
shares, and (B) deliver such shares through the Securities Depository to
the Agent Member of the purchaser thereof against payment therefor.
(e) On the day after the Auction Date:
(i) each Bidder's Agent Member referred to in (d)(i) above shall
instruct the Securities Depository to execute the transactions described
under (b)(i) or (ii) above, and the Securities Depository shall execute
such transactions,
(ii) each Seller's Broker-Dealer or its Agent Member shall instruct
the Securities Depository to execute the transactions described in (d)(ii)
above, and the Securities Depository shall execute such transactions; and
(iii) each Buyer's Broker-Dealer or its Agent Member shall instruct
the Securities Depository to execute the transactions described in (d)(iii)
above, and the Securities Depository shall execute such transactions.
(f) If an Existing Holder selling shares of AMPS in an Auction fails to
deliver such shares (by authorized book-entry), a Broker-Dealer may deliver to
the Potential Holder on behalf of which it submitted a Bid that was accepted a
number of whole shares of AMPS that is less than the number of shares that
otherwise was to be purchased by such Potential Holder. In such event, the
number of shares of AMPS to be so delivered shall be determined solely by such
Broker-Dealer. Delivery of such lesser number of shares shall constitute good
delivery. Notwithstanding the foregoing terms of this paragraph (0, any delivery
or non-delivery of shares which shall represent any departure from the results
of an Auction, as determined by the Auction Agent, shall be of no effect unless
and until the Auction Agent shall have been notified of such delivery or
non-delivery in accordance with the provisions of the Auction Agent Agreement
and the Broker-Dealer Agreements.
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EXHIBIT C
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IBJ XXXXXXXX BANK & TRUST COMPANY
AUCTION BID FORM
Submit To: IBJ Xxxxxxxx Bank & Trust Co. Issue ___________________
Securities Transfer Department Series ___________________
One State Street Auction Date _____________
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Attention: Auction Window Facsimile: (000) 000-0000
The undersigned Broker-Dealer submits the following Order on behalf of the
Bidder listed below:
Name of Bidder: _________________________
EXISTING HOLDER
Shares now held ______________ HOLD ______________
BID at rate of ______________
SELL ______________
POTENTIAL HOLDER
# of shares bid _____________
BID at rate of _____________
Notes:
(1) If submitting more than one Bid for one Bidder, use additional Auction Bid
Forms.
(2) If one or more Bids covering in the aggregate more than the number of
outstanding shares held by any Existing Holder are submitted, such bid
shall be considered valid in the order of priority set forth in the Auction
Procedures on the above issue.
(3) A Hold or Sell may be placed only by an Existing Holder covering a number
of shares not greater than the number of shares currently held.
(4) Potential Holders may make only Bids, each of which must specify a rate. If
more than one Bid is submitted on behalf of any Potential Holder, each Bid
submitted shall be a separate Bid with the rate specified.
(5) Bids may contain no more than three figures to the right of the decimal
point (.001 of 1%). Fractions will not be accepted.
NAME OF BROKER-DEALER __________________
Authorized Signature __________________
EXHIBIT D
---------
(To be used only for transfers made other than pursuant to an Auction.)
TRANSFER FORM
Re: MuniYield New York Insured Fund, Inc.
Auction Market Preferred Stock, Series _ ("AMPS")
We are (check one):
[_] the Existing Holder named below;
[_] the Broker-Dealer for such Existing Holder; or
[_] the Agent Member for such Existing Holder.
We hereby notify you that such Existing Holder has transferred
_______ shares of Series _______ AMPS to ___________.
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(Name of Existing Holder)
----------------------------------------
(Name of Broker-Dealer)
----------------------------------------
(Name of Agent Member)
By:
-------------------------------------
Printed Name:
Title:
EXHIBIT E
---------
(To be used only for failures to deliver
AMPS sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
Complete either I or II
-----------------------
I. We are a Broker-Dealer for (the "Purchaser"), which purchased shares
of Series AMPS of MuniYield New York Insured Fund, Inc. in the Auction
held on _______________ from the seller of such shares.
II. We are a Broker-Dealer for (the "Seller"), which sold shares of Series
AMPS of MuniYield New York Insured Fund, Inc. in the Auction held on
_______________ to the Purchaser of such shares.
We hereby notify you that (check one) --
__________ the Seller failed to deliver such shares to the Purchaser
__________ the Purchaser failed to make payment to the Seller upon
delivery of such shares
Name:_______________________
(Name of Broker-Dealer)
By:_________________________
Printed Name:
Title:
