Exhibit No. EX-99(13)(b)
PAYING AGENT AGREEMENT
between
Voyageur Minnesota Municipal Income Fund II, Inc.
and
Bankers Trust Company
Dated as of May 14, 1993
Relating to
Municipal Income Preferred Shares, Series A and Series B
of
Voyageur Minnesota Municipal Income Fund II, Inc.
TABLE OF CONTENTS
PAGE
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Parties and Recitals....................................................................................1
ARTICLE ONE
PURPOSE; DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01 Purpose.................................................................................1
Section 1.02 Definitions.............................................................................1
Section 1.03 Rules of Construction..................................................................3
ARTICLE TWO
REDEMPTION PREFERRED SHARES
Section 2.01 Notice of Redemption; Other Redemption Procedures.......................................3
ARTICLE THREE
PAYING AGENT AS DIVIDEND AND REDEMPTION PRICE
DISBURSING AGENT, SETTLEMENT AGENT AND AGENT
FOR CERTAIN NOTIFICATIONS
Section 3.01 Results of Remarketings.................................................................5
Section 3.02 Disbursing Dividends and Redemption Price ..............................................5
Section 3.03 Change in Dividend Period...............................................................6
Section 3.04 Notice to Fund and Remarketing Agent....................................................7
ARTICLE FOUR
PAYING AGENT AS TRANSFER AGENT AND REGISTRAR
Section 4.01 Issue of Share Certificates.............................................................7
Section 4.02 Share Register; Allocation of Shares....................................................7
Section 4.03 Registration of Shares..................................................................8
Section 4.04 Lost Certificates.......................................................................8
Section 4.05 Disposition of Canceled Certificates; Record Retention..................................9
Section 4.06 Share Transfer Books....................................................................9
Section 4.07 Return of Funds ........................................................................9
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ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES
Section 5.01 Representations and Warranties of Fund .................................................9
Section 5.02 Representations and Warranties of Paying Agent .........................................10
ARTICLE SIX
THE PAYING AGENT
Section 6.01 Duties and Responsibilities ............................................................10
Section 6.02 Rights of the Paying Agent .............................................................10
Section 6.03 Compensation, Expenses and Indemnification .............................................11
ARTICLE SEVEN
MISCELLANEOUS
Section 7.01 Term of Agreement ......................................................................11
Section 7.02 Communications .........................................................................12
Section 7.03 Entire Agreement .......................................................................13
Section 7.04 Benefits ...............................................................................13
Section 7.05 Amendment; Waiver ......................................................................13
Section 7.06 Successors and Assigns .................................................................13
Section 7.07 Severability ...........................................................................13
Section 7.08 Article and Section Headings............................................................14
Section 7.09 Counterparts ...........................................................................14
Section 7.10 Governing Law ..........................................................................14
Exhibit A Notice of Redemption/Fund to Paying Agent
Exhibit B Transfer Form/ Remarketing Agent to Paying Agent
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PAYING AGENT AGREEMENT
PAYING AGENT AGREEMENT dated as of May 14, 1993, between
VOYAGEUR MINNESOTA MUNICIPAL INCOME FUND II, INC., a Minnesota corporation (the
"Fund"), and BANKERS TRUST COMPANY, a corporation duly organized and existing
under the laws of the State of New York (the "Paying Agent").
The Fund proposes to issue 600 Municipal Income Preferred
Shares, Series A (the "Series A Preferred Shares") and 600 Municipal Income
Preferred Shares, Series B (the "Series B Preferred Shares") (collectively, the
"Preferred Shares") pursuant to its Articles (as defined below). The Fund
desires that the Paying Agent perform certain duties in connection with the
Preferred Shares upon the terms and conditions of this Agreement and hereby
appoints the Paying Agent to act in the capacities set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the Fund and the Paying Agent agree as
follows:
ARTICLE ONE
PURPOSE; DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.01 Purpose. The Board of Directors of the Fund has
adopted a resolution appointing the Paying Agent as transfer agent, registrar,
dividend and redemption price disbursing agent and agent for certain
notifications for the Fund in connection with the Preferred Shares. The Paying
Agent accepts such appointment and agrees to act in accordance with its standard
procedures as Paying Agent with respect to the Preferred Shares as set forth in
this Agreement.
SECTION 1.02 Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires,
capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Articles (as defined below).
"Agent Member" means a member of the Securities Depository
that will maintain records for a purchaser of one or more Preferred Shares.
"Articles" shall mean the Articles of Incorporation of the
Fund (including the Statement), as amended from time to time, on file with the
Secretary of State of the State of Minnesota.
"Authorized Newspaper" shall mean a newspaper of general
circulation in the English language generally published on Business Days in the
City of New York, New York.
"Authorized Officer" shall mean each Senior Vice President,
Vice President and Assistant Vice President of the Paying Agent assigned to its
Corporate Trust Department and every other officer or employee of the Paying
Agent designated as an "Authorized Officer" for purposes hereof in a notice from
the Paying Agent to the Fund.
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"Beneficial Owner" means a person who is listed as the
beneficial owner of one or more Preferred Shares in the records of the Paying
Agent or, with respect to any Preferred Share not registered in the name of the
Securities Depository on the share transfer books of the Fund, the person in
whose name such share is so registered.
"Board of Directors" means the Board of Directors of the Fund.
"Business Day" means a day on which the New York Stock
Exchange, Inc. is open for trading and which is neither a Saturday, Sunday nor
any other day on which banks in the City of New York are authorized or obligated
by law to close.
"Commission" means the Securities and Exchange Commission.
"Holder" means, with respect to any Preferred Share, the
person who is listed in the records of the Paying Agent as the beneficial owner.
"Notice of Redemption" shall mean a notice of redemption, in
whole or in part, given by the Fund by telephone or facsimile and in writing
substantially in the form attached hereto as Exhibit A.
"Remarketing-Agent" shall mean Xxxxx Xxxxxx, Xxxxxx Xxxxx &
Co. Incorporated and any additional or successor Remarketing Agent as may be
appointed by the Fund from time to time.
"Securities Depository" means The Depository Trust Company, a
securities depository, or any successor company or other entity selected by the
Fund to act as a securities depository for the Preferred Shares that agrees to
follow the procedures required to be followed by such securities depository in
connection with the Preferred Shares.
"Signing Officer" shall mean the Chairman of the Board, the
President, a Vice President or the Treasurer of the Fund and every other officer
or employee of the Fund designated by the Chairman of the Board, the President
or a Vice President as a "Signing Officer" for purposes hereof in a notice to
the Paying Agent.
"Statement" shall mean the Statement Establishing two series
of Preferred Shares filed on May 12, 1993 in the office of the Secretary of
State of the State of Minnesota.
"Underwriting Agreement" shall mean the Underwriting
Agreement, dated May 11, 1993, by and among Xxxxx Xxxxxx, Xxxxxx Xxxxx & Co.
Incorporated, PaineWebber Incorporated and Dougherty, Dawkins, Strand & Xxxxxxx,
Inc. (the "Underwriters"), the Fund and Voyageur Fund Managers (the "Adviser"),
providing for the sale of the Preferred Shares by the Fund to the Underwriters.
"Vice President" when used with respect to the Fund shall mean
any Vice President of the Fund whether or not designated by number or a word or
words added before or after the title "Vice President."
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SECTION 1.03 Rules of Construction. Unless the context or use
indicates another or 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; (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; and (d) all
references herein to times of day shall be to New York City time.
ARTICLE TWO
REDEMPTION OF PREFERRED SHARES
SECTION 2.01 Notice of Redemption; Other Redemption
Procedures.
(a) The Fund shall give 30 days' notice of redemption, in
whole or in part, of Preferred Shares, pursuant to Part I, Section 4 of the
Statement, to the Paying Agent, the Remarketing Agent and the Securities
Depository, if any (and any other Holder) by telephone or facsimile, confirmed
in writing, in the form of a Notice of Redemption. In the event the Fund obtains
appropriate exemptive or no-action relief from the Commission, the number of
days' notice required for a mandatory redemption may be reduced by the Board of
Directors of the Fund to as few as two Business Days if Xxxxx'x Investors
Service, Inc. and Standard & Poor's Corporation each has agreed in writing that
the revised notice provision would not adversely affect its then current rating
of Preferred Shares.
(b) The Paying Agent will use its reasonable efforts to
provide telephonic notice to each Beneficial Owner of Preferred Shares called
for redemption not later than the close of business on the Business Day on which
the Paying Agent determines the shares to be redeemed, as described in clause
(d) below (or, during a Non-Payment Period with respect to such shares, not
later than the close of business on the Business Day immediately following the
day on which the Paying Agent receives Notice of Redemption from the Fund). Such
telephonic notice shall be confirmed to the Remarketing Agent, the Securities
Depository, and each Beneficial Owner of Preferred Shares called for redemption,
promptly in writing not later than the close of business on the third Business
Day preceding the redemption date by a copy of the Notice of Redemption.
(c) Every Notice of Redemption shall state: (i) the redemption
date; (ii) the number of Preferred Shares of any series to be redeemed; (iii)
the redemption price; (iv) that dividends on the Preferred Shares to be redeemed
will cease to accumulate as of such redemption date; and (v) the provisions of
the Articles pursuant to which such shares are being redeemed. No defect in the
Notice of Redemption or in the transmittal or mailing thereof shall affect the
validity of the redemption proceedings, except as required by applicable law.
Preferred Shares, the Beneficial Owners of which shall have been given notice of
redemption, as set forth herein, shall not be subject to transfer outside of a
Remarketing.
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(d) (i) Subject to clause (d)(ii) below, if fewer
than all the outstanding Preferred Shares of any series are to be
redeemed, the number of Preferred Shares of such series to be redeemed
shall be a whole number of shares and shall be determined by the Board
of Directors of the Fund, and the Fund shall give a Notice of
Redemption to the Paying Agent substantially in the form of Exhibit A
hereto. Upon receipt of the Notice of Redemption with respect to such
partial redemption, the Paying Agent shall notify the Securities
Depository and the Remarketing Agent of such redemption by the close of
business on the day the Paying Agent receives the Notice of Redemption,
as provided in clause (b) above, which notice shall include the
aggregate number of Preferred Shares of such series to be redeemed.
Unless certificates representing all of the outstanding Preferred
Shares of such series are held by Holders other than the Securities
Depository or its nominee, the Securities Depository, upon receipt of a
copy of the Notice of Redemption, will use its best efforts to
determine, by 10:00 a.m., New York City time, on the second Business
Day immediately succeeding the date on which it receives such Notice of
Redemption, by lot the number of Preferred Shares of such series to be
redeemed from the account of each Agent Member (which may include an
Agent Member, including the Remarketing Agent, holding Preferred Shares
for its own account) and immediately notify the Paying Agent of the
results of such lottery. Upon receipt of notice of such information
from the Securities Depository, the Paying Agent shall in turn select
by lot the number of Preferred Shares of such series to be redeemed
from the accounts of the Beneficial Owners of Preferred Shares whose
Agent Members have been selected by the Securities Depository. In doing
so, Preferred Shares of such series may be redeemed from the accounts
of some Beneficial Owners, which may include the Remarketing Agent,
without Preferred Shares of such series being redeemed from the
accounts of other Beneficial Owners. The Paying Agent will give notice
of such determination to the Remarketing Agent by 12:00 noon (provided
that, in the event a Securities Depository is used, notice of such
determination was received by the Paying Agent by 10:00 a.m.) on the
day on which such determination is made.
(ii) Notwithstanding clause (d)(i) above, if certificates
representing Preferred Shares called for redemption are not held by the
Securities Depository or its nominee, the Preferred Shares to be
redeemed shall be selected by lot.
(iii) Notwithstanding subparagraphs (d)(i) or (d)(ii) above,
(A) no Preferred Share shall be redeemable at the option of the Fund
during any Non-Call Period with respect to such share, and (B) any
Preferred Share will be subject to mandatory redemption regardless of
whether such share is subject to a Non-Call Period. In such event, such
Preferred Shares subject to a Special Dividend Period will be selected
for redemption by lot.
(iv) Notwithstanding the foregoing provisions of this
subparagraph (d), the Paying Agent will not redeem fewer than all of
the outstanding Preferred Shares of any series without the written
consent of the Remarketing Agent if, after such partial redemption,
fewer than 100 Preferred Shares of such series will remain outstanding.
(e) Notwithstanding the foregoing provisions of this Section
2.01, the Remarketing Agent may, in its sole discretion, modify the
procedures set forth above with respect to notification of redemption
for the Preferred Shares of any series, provided such modification does
not adversely affect the Beneficial Owners of the Preferred Shares of
such series or cause the Fund to violate any law, rule or regulation;
and provided further that no such modification shall in any way affect
the Paying Agent without its prior written consent.
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ARTICLE THREE
PAYING AGENT AS DIVIDEND AND REDEMPTION PRICE
DISBURSING AGENT AND AGENT FOR CERTAIN NOTIFICATIONS
SECTION 3.01 Results of Remarketings.
(a) On each Remarketing Date with respect to any series of
Preferred Shares, the Fund will cause the Remarketing Agent to advise the Paying
Agent by electronic data transfer by 3:30 p.m. of (i) the Applicable Dividend
Rate determined in the related Remarketing; (ii) the identities of (and the
number of shares held by) the Beneficial Owners who purchased Preferred Shares
of such series as a result of the Remarketing; (iii) the identities of (and
number of shares sold by) persons who sold Preferred Shares of such series in
the Remarketing; and (iv) the Specific Redemption Provisions, if any, relating
to the Preferred Shares of such series. By approximately 4:30 p.m. on such
Remarketing Date, the Paying Agent will confirm by telephone or electronic data
transfer such information with the Remarketing Agent.
(b) No later than the close of business on he Settlement Date,
the Paying Agent shall telecopy notice to the Securities Depository of the
Applicable Dividend Rate, the record date and the payment date with respect to
each Preferred Share subject to Remarketing and Dividend Reset and shall verify
receipt by the Securities Depository of such notice.
(c) This Section shall not be applicable to any Preferred
Share of a series during a Non-Payment Period with respect to such series.
SECTION 3.02 Disbursing Dividends and Redemption Price.
(a) Unless the Applicable Dividend Rate for the Preferred
Shares of any series is the Non-Payment Period Rate, the Fund shall irrevocably
deposit in trust, in same-day funds, with the Paying Agent by 12:00 noon (and,
if appropriate, shall provide to the Paying Agent a Fed Funds wire confirmation
number, or in the alternative notice that a deposit will not be made by 11:30
a.m.) on (i) the Business Day preceding the applicable Dividend Payment Date for
the Preferred Shares of such series the full amount of any dividend declared and
payable on such Dividend Payment Date on such Preferred Shares, and (ii) the
Business Day preceding any redemption date for the Preferred Shares of such
series, the redemption price to be paid on such redemption date (including
premium, if any, resulting from the designation of a Premium Call Period) plus
an amount equal to dividends thereon accumulated but unpaid to such redemption
date (whether or not earned or declared); provided that said notice shall be
given by 11:30 a.m. on each such day on which no such deposit will be made and
before which no such deposit has been made. In addition, with respect to any
such deposit which is not made by the Fund on the Business Day prior to the
applicable Dividend Payment Date or redemption date, as the case may be, but
within three Business Days of such due date, the Fund shall also deposit with
the Paying Agent a late charge in such amount as shall be calculated by the Fund
for such period of non-payment at the Non-Payment Period Rate applied to the
amount of such non-payment. The Paying Agent agrees to hold all moneys so
deposited with the Paying Agent by the Fund in trust for the payment of
dividends, the redemption price, or any late charge which the Paying Agent has
been advised by the Fund or the Remarketing Agent is applicable to Preferred
Shares of any series, for the benefit of the Holders entitled thereto and to
apply such moneys as set forth in clause (b) below.
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(b) The Paying Agent will pay to the applicable Holder, as
determined pursuant to the Statement, on the date of the Paying Agent's receipt
of the Fund's deposit of funds in accordance with the provisions of paragraph
(a) above (provided that payment in New York Clearing House (next-day) Funds at
any time on a preceding Business Day shall be considered equivalent to payment
in same-day funds on the next Business Day at the same time conditioned upon
receipt of good funds by such time, and any payment made after 12:00 noon on any
Business Day shall be considered to have been made instead in the same form of
funds before 12:00 noon on the next Business Day) or, in the case of dividends
in arrears on any Preferred Share, at any time as may be fixed by the Fund, (i)
dividends, including any late charge, on the applicable Preferred Shares, and
(ii) the redemption price plus the premium, if any, resulting from the
designation of a Premium Call Period, plus an amount equal to dividends thereon
(whether or not earned or declared) accumulated but unpaid to such redemption
date, in either case after receipt of the necessary funds from the Fund with
which to pay such dividends or redemption price. The amount of dividends for any
Dividend Period to be paid by the Paying Agent to the Holder entitled thereto
will be determined as set forth in Part I, Section 3 of the Statement. The
redemption price to be paid by the Paying Agent to the Holder entitled thereto
will be determined as set forth in Part I, Section 4 of the Statement. The
Paying Agent shall have no duty to determine the redemption price or the
Non-Payment Period Rate and may rely on the amount thereof set forth in the
Notice of Redemption. Upon the request of the Fund, the Paying Agent shall
promptly transmit to the Fund after the date of any redemption as described
above any cash held by the Paying Agent in excess of the sum of (A) the
aggregate redemption price of Preferred Shares called for redemption on such
date and (B) any other amounts which the Fund or the Remarketing Agent has
advised the Paying Agent that Holders of Preferred Shares called for redemption
may be entitled to.
(c) If the Fund provides notice to the Remarketing Agent of a
Retroactive Taxable Allocation with respect to Preferred Shares of any series,
the Fund shall simultaneously provide notice to the Paying Agent and, within 270
days after such notice is given and by 12:00 noon of the Business Day preceding
the date fixed for payment of an Additional Dividend, the Fund shall irrevocably
deposit in trust, in same-day funds, with the Paying Agent (and, if appropriate,
shall provide to the Paying Agent a Fed Funds wire confirmation number) an
amount equal to such Additional Dividend and shall give the Paying Agent
irrevocable instructions and authority to pay the Additional Dividends to
Holders of Preferred Shares of such series (or former Holders) entitled thereto.
(d) Nothing contained herein shall be construed to require the
Paying Agent to advance or pay any funds to any Holder unless sufficient funds
have been deposited with the Paying Agent by the Fund for the purpose of making
payments hereunder.
SECTION 3.03 Change in Dividend Period. Upon any change in the
period of time between Dividend Payment Dates for the Preferred Shares of any
series as a result of a change in law or otherwise, the Fund will give notice of
such change to the Paying Agent and the Remarketing Agent and cause the Paying
Agent to use reasonable efforts to notify the Holders thereof by telephone,
confirmed in writing, of such change; provided that if the Dividend Period whose
length is being adjusted is a Dividend Period for which the Applicable Dividend
Rate is the Non-Payment Period Rate, the Fund will notify the Holders of
affected Preferred Shares directly.
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SECTION 3.04 Notice to Fund and Remarketing Agent. If one or
more of the following events occurs with respect to the Preferred Shares of any
series, the Paying Agent shall promptly notify the Fund and, so long as the
Applicable Dividend Rate with respect to the Preferred Shares of such series
shall not be the Non-Payment Period Rate, the Remarketing Agent, of such
occurrence by telephone, promptly confirmed in writing:
(a) at the close of business on the Business Day preceding the
applicable Dividend Payment Date for any Preferred Shares, dividends on
all outstanding Preferred Shares accumulated to any Dividend Payment
Date for the Preferred Shares, including such first mentioned Dividend
Payment Date, have not been paid in full or sufficient funds have not
been deposited with the Paying Agent for the payment of such
accumulated dividends;
(b) the Fund has failed to redeem on any redemption date any
Preferred Shares for which Notice of Redemption has been received by
the Paying Agent; or
(c) by 12:00 noon on the third Business Day following the
occurrence of either of the events described in (a) or (b) above, the
Fund has not deposited with the Paying Agent the full amount of funds
described in subparagraph (a) of Section 3.02.
ARTICLE FOUR
PAYING AGENT AS TRANSFER AGENT AND REGISTRAR
SECTION 4.01 Issue of Share Certificates. On the date of
issuance of the Preferred Shares, one certificate for the Series A Preferred
Shares and one certificate for the Series B Preferred Shares shall be issued by
the Fund. Such certificates shall be registered in the name of the Securities
Depository or its nominee and countersigned by the Paying Agent in its capacity
as registrar, which shall deliver the certificates to the Securities Depository.
SECTION 4.02 Share Register; Allocation of Shares.
(a) So long as the Applicable Dividend Rate with respect to
any series of Preferred Shares shall not be the Non-Payment Period Rate, the
Paying Agent shall maintain a registry of the Beneficial Owners of the Preferred
Shares of such series. By 9:00 a.m. on each Remarketing Date, the Paying Agent
shall deliver a copy of such registry to the Remarketing Agent. On each
Settlement Date for the Preferred Shares, the Paying Agent shall deliver a copy
of such registry to the Fund. On or prior to the original issuance of the
Preferred Shares, the Fund shall cause the Remarketing Agent to provide the
Paying Agent with a list of the initial Beneficial Owners. The Paying Agent may
rely exclusively upon, as conclusive evidence of the identities of the
Beneficial Owners, (i) such list, (ii) the results of Remarketings reported to
the Paying Agent by the Remarketing Agent, and (iii) notice from the Remarketing
Agent with respect to the transfer of Preferred Shares outside of a Remarketing
by a Beneficial Owner to another person.
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(b) The Paying Agent shall only register a transfer of
Preferred Shares from a Beneficial Owner to another person if (i) the Paying
Agent has been notified by the Remarketing Agent that such transfer is pursuant
to a Remarketing therefor, or (ii) the Paying Agent has been notified in writing
in a notice substantially in the form of Exhibit B hereto by the Remarketing
Agent of such transfer outside of a Remarketing therefor. The Paying Agent shall
not be required to accept any notice delivered pursuant to the foregoing
sentence unless received by the Paying Agent by 3:00 p.m. on the Business Day
preceding the immediately succeeding Remarketing Date for such shares.
(c) Except as otherwise provided in this Section, the
foregoing provisions of this Section shall no longer be applicable to the
Preferred Shares of any series if the Applicable Dividend Rate for shares of
such series shall be the Non-Payment Period Rate.
SECTION 4.03 Registration of Shares.
(a) Except as set forth in this Section 4.03, if a Securities
Depository is used, Preferred Shares shall be registered solely in the name of
the Securities Depository or its nominee. If the Securities Depository shall
give notice of its intention to resign as such, and if the Fund shall not have
selected a substitute Securities Depository reasonably acceptable to the Paying
Agent prior to such resignation, then upon such resignation, the Preferred
Shares of each series shall be registered for transfer or exchange, and a new
certificate for each series shall be issued in the name of the designated
transferee or transferees of the Securities Depository, upon surrender of the
old certificate for each respective series in a form deemed, by the Paying Agent
in its capacity as registrar properly endorsed for transfer with (i) all
necessary endorsers' signatures guaranteed in accordance with the written
standards and procedures adopted by the Paying Agent pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934; (ii) such assurances as the Paying
Agent in its capacity as registrar shall deem necessary or appropriate to
evidence the genuineness and effectiveness of each necessary endorsement; and
(iii) satisfactory evidence of compliance with all applicable laws relating to
the collection of taxes or funds necessary for the payment of such taxes.
(b) If certificates representing Preferred Shares are, at the
direction of the Fund, to be held by Holders other than the Securities
Depository, such shares shall be registered for transfer or exchange, and the
Fund shall issue one or more new certificates with respect to such shares
registered in the names of the Beneficial Owners thereof or their nominees, upon
surrender of the old certificates in a form deemed by the Paying Agent properly
endorsed for transfer, with (i) all necessary endorsers' signatures guaranteed
in accordance with the written standards and procedures adopted by the Paying
Agent pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934; (ii)
such assurances as the Paying Agent shall deem necessary or appropriate to
evidence the genuineness and effectiveness of each necessary endorsement; and
(iii) satisfactory evidence of compliance with all applicable laws relating to
the collection of taxes or funds necessary for the payment of such taxes.
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SECTION 4.04 Lost Certificates. The Paying Agent shall issue
and register replacement certificates for certificates represented to have been
lost, stolen or destroyed, upon the fulfillment of such requirements as shall be
deemed appropriate by the Fund and the Paying Agent, subject at all times to
provisions of law, the bylaws of the Fund governing such matters and resolutions
adopted by the Fund with respect to lost securities. The Paying Agent may issue
new certificates in exchange for and upon the cancellation of mutilated
certificates. Any request by the Fund to the Paying Agent to issue a replacement
or new certificate pursuant to this Section shall be deemed to be a
representation and warranty by the Fund to the Paying Agent that such issuance
will comply with applicable provisions of law and the bylaws and resolutions of
the Fund.
SECTION 4.05 Disposition of Canceled Certificates; Record
Retention. The Paying Agent shall retain share certificates which have been
canceled in transfer or in exchange and accompanying documentation for two
calendar years from the date of such cancellation. The Paying Agent shall afford
access to the Fund, its agents and counsel at reasonable times during normal
business hours to review and make extracts or copies of such certificates and
accompanying documentation. Upon the expiration of such two-year period and at
the Fund's request the Paying Agent shall deliver to the Fund the canceled
certificates and accompanying documentation. The Fund shall, at its sole cost
and expense, retain such records for a minimum additional period of ten calendar
years from the date of delivery of the records to the Fund and shall make such
records available during normal business hours upon written request during this
period at any time, or from time to time, for reasonable periodic, special or
other examinations by representatives of the Commission. The Fund also shall
undertake to furnish to the Commission, upon demand, at either its principal
office or at any regional office, complete, correct and current hard copies of
any and all such records.
SECTION 4.06 Share Transfer Books. The Paying Agent shall
maintain the share transfer books listing the Holders of the Preferred Shares.
In case of any request or demand for the inspection of the share transfer books
of the Fund or any other books in the possession of the Paying Agent, the Paying
Agent will notify the Fund and secure written instructions as to permitting or
refusing such inspection. Notwithstanding the foregoing, the Paying Agent
reserves the right to exhibit the share transfer books or other books to any
person in case it is advised by its counsel that its failure to do so would (i)
be unlawful, or (ii) expose it to liability, unless the Paying Agent shall have
received indemnification acceptable to it.
SECTION 4.07 Return of Funds. The Paying Agent shall notify
the Fund in writing of the amount of any funds deposited with the Paying Agent
by the Fund for any reason under this Agreement, including for the payment of
dividends or the redemption of Preferred Shares, that remain with the Paying
Agent after 90 days from the date of such deposit and such amount shall, to the
extent permitted by law, be repaid to the Fund by the Paying Agent upon the
written request of the Fund. The Paying Agent shall have no duty to invest any
funds deposited with it at any time pursuant to this Agreement.
ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES
SECTION 5.01 Representations and Warranties of Fund. The Fund
represents and warrants to the Paying Agent that:
(a) it is a corporation duly organized and existing and in
good standing under the laws of the State of Minnesota;
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(b) it is a closed-end diversified management investment
company registered under the Investment Company Act of 1940, as
amended;
(c) a registration statement under the Securities Act of 1933
has been filed and will be effective with respect to all Preferred
Shares being offered for sale to the public;
(d) all requisite steps have been or will be taken to register
the Preferred Shares for sale in all states in which such shares are
offered; and
(e) it is empowered under applicable laws and by its Articles
of Incorporation and bylaws to enter into and perform this Agreement.
SECTION 5.02 Representations and Warranties of Paying Agent.
Paying Agent represents and warrants to the Fund that:
(a) it is a trust company duly organized and existing and in
good standing under the laws of the State of New York;
(b) it is duly qualified to carry on its business in the State
of New York;
(c) it is empowered under applicable laws and by its Articles
of Incorporation and bylaws to enter into and perform the services
contemplated in this Agreement;
(d) all requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement; and
(e) it has and will continue to have and maintain the
necessary facilities, equipment and personnel to perform, its duties
and obligations under this Agreement.
ARTICLE SIX
THE PAYING AGENT
SECTION 6.01 Duties and Responsibilities.
(a) The Paying Agent is acting solely as agent for the Fund
hereunder and owes no fiduciary duties to any other person by reason of
this Agreement.
(b) The Paying 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 Paying Agent.
(c) In the absence of negligence or bad faith on its part, the
Paying 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.
-10-
SECTION 6.02 Rights of the Paying Agent.
(a) The Paying Agent may rely and shall be protected in acting
or refraining from acting upon any communication authorized hereby 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 Paying Agent shall not be liable for acting upon any telephone
communication authorized hereby which the Paying Agent believes in good faith to
have been given by the Fund, a Holder, a Beneficial Owner, an Agent Member or
the Remarketing Agent. The Paying Agent may record telephone communications with
the Fund and the Remarketing Agent in connection with its duties hereunder.
(b) The Paying Agent may consult with outside counsel 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.
(c) The Paying 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 Paying Agent may perform its duties and its rights
hereunder either directly or by or through agents or attorneys.
SECTION 6.03 Compensation, Expenses and Indemnification.
(a) The Fund shall pay the Paying Agent, from time to time,
reasonable compensation for all services rendered by it under this Agreement as
shall be agreed upon by the Fund and the Paying Agent.
(b) The Fund shall reimburse the Paying Agent, upon the Paying
Agent's request, for all reasonable out-of-pocket expenses, disbursements and
advances which shall have been agreed upon by the Fund and the Paying Agent and
shall have been incurred or made by the Paying Agent in accordance with the
provisions of this Agreement (including the reasonable compensation, expenses
and disbursements of any agent or counsel for the Paying Agent) except any
expense or disbursement attributable to negligence or bad faith of the Paying
Agent.
(c) The Fund shall indemnify the Paying Agent for and hold it
harmless against any loss, liability or expense incurred without negligence or
willful misconduct on the Paying Agent's part, arising out of or in connection
with its agency under this Agreement, including the costs and expenses of
defending itself against any claim or liability in connection with its exercise
or performance of any of its duties hereunder (including reasonable attorneys'
fees).
ARTICLE SEVEN
MISCELLANEOUS
SECTION 7.01 Term of Agreement.
(a) The term of this Agreement shall continue for so long as
any Preferred Share is outstanding, unless it shall be terminated as provided in
this Section 7.01. The Fund may terminate this Agreement at any time by so
notifying the Paying Agent, provided that, so long as any Preferred Shares are
outstanding, the Fund has entered into an agreement with a successor Paying
Agent in substantially the form of this Agreement. The Paying Agent may
terminate this Agreement upon notice to the Fund on the date specified in such
notice, which shall be no earlier than 90 days after the date of delivery of
such notice.
-11-
(b) Except as otherwise provided in this clause (b), the
respective rights and duties of the Fund and the Paying Agent under this
Agreement shall cease upon termination of this Agreement. The Fund's
representations, warranties, covenants and obligations to the Paying Agent under
Sections 5.01 and 6.03 hereof shall survive the termination hereof. Upon
termination of this Agreement, the Paying Agent shall (i) at the request of the
Fund, promptly deliver to the Fund copies of all books and records maintained by
it in connection with its duties hereunder, and (ii) at the request of the Fund,
promptly transfer to the Fund or any successor Paying Agent any funds held for
the Fund which have not previously been distributed by the Paying Agent in
accordance with this Agreement.
SECTION 7.02 Communications. Except for communications
authorized to be by telephone pursuant to this Agreement, all notices, requests
and other communications to any party hereunder shall be in writing (including
telecopy or similar writing) given to such person at its address or telecopy
number set forth below:
If to the Fund: Voyageur Minnesota Municipal
Income Fund II, Inc.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Paying
Agent: Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Rate Securities
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the
Remarketing Agent: Xxxxx Xxxxxx, Xxxxxx Xxxxx & Co.
Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Short-Term Preferred Sales
and Trading-44th Floor
Telephone: (000) 000-0000
Telecopier: (000) 000-0000;
(000) 000-0000
-12-
If to the Securities
Depository: The Depository Trust Company
0 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager, Reorganization
Department, Reorganization Window
Telephone: (000) 000-0000
Telecopier: (000) 000-0000 or -1094
or to such other address as the party to whom the communication is addressed
shall have previously communicated to the other party. Any notice to a
Beneficial Owner shall be given at the address or phone number, as the case may
be, as the Agent Member for such Beneficial Owner shall have previously
communicated to the Paying Agent or a Remarketing Agent. Communications shall be
given on behalf of the Fund by a Signing Officer and on behalf of the Paying
Agent by an Authorized Officer. Communications shall be effective when received
at the proper address.
SECTION 7.03 Entire Agreement. This Agreement contains the
entire agreement between the parties relating to the subject matter hereof, and
there are no other representations, endorsements, promises, agreements or
understandings, oral, written or implied, between the parties.
SECTION 7.04 Benefits. Nothing herein, express or implied,
shall give to any person, other than the Fund, the Paying Agent and their
respective successors and assigns, any benefit of any legal or equitable right,
remedy or claim hereunder.
SECTION 7.05 Amendment; Waiver.
(a) Subject to Section 2.01(e), this Agreement shall not be
deemed or construed to be modified, amended, rescinded, canceled or waived, in
whole or in part, except by a written instrument signed by a duly authorized
representative of each party.
(b) Failure of either party hereto to exercise any right or
remedy hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such rights or remedies with respect to any
subsequent breach.
SECTION 7.06 Successors and Assigns. This Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the respective
successors and assigns of each of the Fund and the Paying Agent. Without the
prior written consent of the Fund, the Paying Agent may not assign this
Agreement except by operation of law or to a person who acquires substantially
all of the assets and assumes all of the liabilities of the Paying Agent, either
directly or by operation of law.
SECTION 7.07 Severability. If any clause, provision or section
hereof 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 of the remaining clauses, provisions or sections
hereof.
-13-
SECTION 7.08 Article and Section Heading. The Article and
Section headings herein are for convenience of reference only, and shall not
limit or otherwise affect the meaning hereof.
SECTION 7.09 Counterparts. This Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed to be an original, but all of which counterparts shall together
constitute but one and the same instrument.
SECTION 7.10 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Minnesota
applicable to agreements made and 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.
VOYAGEUR MINNESOTA MUNICIPAL
INCOME FUND II, INC.
By: /s/ Xxxx X. [Xxxx]
----------------------------------
Title: Executive Vice President
BANKERS TRUST COMPANY
By: /s/ [S. Dect]
----------------------------------
Title: A.T.
-14-
EXHIBIT A
[Fund to Paying Agent]
VOYAGEUR MINNESOTA MUNICIPAL INCOME FUND II, INC.
NOTICE OF REDEMPTION OF
MUNICIPAL INCOME PREFERRED SHARES
NOTICE IS HEREBY given that, pursuant to the provisions of the
Articles of Voyageur Minnesota Municipal Income Fund II, Inc. (the "Fund"), the
Fund will redeem on ____________________, ______, (the "Redemption Date"),
________ shares (the "Redemption Shares") of its then outstanding Municipal
Income Preferred Shares, Series ____, at the redemption price of $50,000 per
share plus accumulated but unpaid dividends to the Redemption Date.
Payment of an amount equal to the redemption price, plus
accumulated but unpaid dividends to the Redemption Date, will be deposited, in
same-day funds, with the Paying Agent by 12:00 p.m., New York time, on the
Business Day preceding the applicable Redemption Date.
As of ______________, ____________ dividends on the Redemption
Shares will cease to accumulate.
[Date] VOYAGEUR MINNESOTA
MUNICIPAL INCOME FUND II, INC.
By ____________________________
Title:_____________________
A-1
EXHIBIT B
[Remarketing Agent to Paying Agent -
To be used only for transfers made
other than pursuant to a Remarketing)
VOYAGEUR MINNESOTA MUNICIPAL INCOME FUND II, INC.
MUNICIPAL INCOME PREFERRED SHARES
TRANSFER FORM
The undersigned hereby notifies you that:
___________________________________________
(Print name of existing beneficial owner)
has sold ________ shares of Municipal Income Preferred Shares, Series ____, to
___________________________________________
(Print name of new beneficial owner)
[NAME OF REMARKETING AGENT]
By:___________________________________
Name:
Title:
B-1
