Exhibit (c)(2)
DEPOSITARY AGREEMENT
May 8, 0000
Xxxxx Xxxxxx Bank and Trust Company
X/X Xxxxxx XxxxXxxxx
000 Xxxxxx Xxxxxx
Mail Stop: 45-02-53
Xxxxxx, Xxxxxxxxxxxxx 00000
Gentlemen:
ACM Managed Dollar Income Fund, Inc. a Maryland corporation (the "Fund"),
is making a tender offer (hereinafter referred to, together with any amendment
or extensions thereof, as the "Tender Offer") to purchase for cash 7,081,253
outstanding shares of its Common Stock, par value of $0.01 per share (the
"Shares"), upon the terms and subject to the conditions set forth in the Offer
to Purchase, dated May 8, 1997 (the "Offer to Purchase"), and in the related
Letter of Transmittal ("Letter of Transmittal"), including the instructions set
forth therein. Definitive copies of each document being distributed by the Fund
to its stockholders in connection with the Tender Offer have been or will be
delivered to you.
The Tender Offer is being made on May 8, 1997, and will expire at
midnight, New York City time, on June 5, 1997, unless extended by the Fund as
provided in the Tender Offer (the last date to which the Tender Offer is
extended and on which it expires is herein referred to as the "Expiration
Date").
This will confirm our agreement with you to act as the Depositary in
connection with the Tender Offer. In such capacity you will receive and make
payment for, on behalf of the Fund, Shares tendered pursuant to the terms of the
Tender Offer. In carrying out your duties as the Depositary in connection with
the Tender Offer, you are to act in accordance with the following instructions:
1. You shall examine the Letters of Transmittal, the certificates for
Shares and the other documents delivered or mailed to you in connection with
tenders of Shares to ascertain whether they are completed and executed in
accordance with the
instructions set forth in the Letters of Transmittal. In the event any Letter of
Transmittal has been improperly completed or executed, or the certificates for
Shares accompanying such Letter of Transmittal are not in proper form for
transfer (as required by the aforesaid instructions), or if some other
irregularity in connection with any tender of Shares exists, you shall endeavor
to cause such action to be taken as is necessary to correct such irregularity,
but only as the Fund may direct. Determination of all questions as to the
validity, form, eligibility (including timeliness of receipt) and acceptance of
any Shares tendered or delivered shall be determined by you on behalf of the
Fund in the first instance, but final decisions on all such matters shall be
made by the Fund. The Fund will reserve in the Tender Offer the absolute right
to reject any or all tenders of any particular Shares not in appropriate form or
the acceptance of which would, in the opinion of the Fund's counsel, be unlawful
and to waive any of the conditions of the Tender Offer or any defect or
irregularity in the tender of any Shares, and the Fund's interpretation of the
terms and conditions of the Tender Offer will be final.
2. All Shares must be tendered in accordance with the terms and conditions
set forth in the Tender Offer. Payment for Shares tendered and purchased
pursuant to the Tender Offer shall be made only after deposit with you of the
certificates therefor, the Letter of Transmittal and any other required
documents.
3. A tendering stockholder may withdraw Shares tendered as set forth in
Section 5 of the Offer to Purchase, in which event you shall, as promptly as
possible after notification of such withdrawal, return such Shares to, or in
accordance with the instruction of, such stockholder and such Shares shall no
longer be considered properly tendered. All questions as to the form and
validity of notices of withdrawal, including timeliness of receipt, shall be
determined by the Fund, whose determination shall be final and binding.
4. On each business day up to and including the Expiration Date (as
defined in Section 1 of the Offer to Purchase), you shall advise by facsimile
transmission, not later than 5:00 p.m., Boston time, Xxxx Xxxxxxx, Xxxxxx Xxxxxx
and such other persons as either of them may direct, of the number of Shares
which have been duly tendered on such day, stating separately the number of
Shares tendered by Guarantees of Delivery pursuant to Section 4 (a) of the Offer
to Purchase, the
number of Shares tendered about which you have questions concerning validity
and the cumulative number of Shares tendered through time of such facsimile
transmission. You shall also inform the aforementioned persons, and such other
persons as may be designated by either of them, upon request made from time to
time, of such other information as either of them may request, including,
without limitation, the names and addresses of registered holders of tendered
Shares.
5. Letters of Transmittal pursuant to Section 4 (a) of the Offer to
Purchase shall be stamped by you as of the date and time of receipt thereof and
preserved by you as permanent records until you are otherwise instructed by the
Fund. You are to match Guarantees of Delivery submitted pursuant to Section 3 of
the Offer to Purchase with the Share(s) tendered pursuant thereto. If so
instructed by the Fund, you shall telephone Eligible Institutions (as defined in
Section 4 (b) of the Offer to Purchase) which have tendered a significant number
of shares by means of the aforementioned procedures to ascertain information in
connection therewith.
6. The Fund will notify you of, and confirm in writing, any extension
or amendment of the Tender Offer.
7. You shall follow and act upon any amendments, modifications or
supplements to these instructions, and upon any further instructions in
connection with the Tender Offer, any of which may be given to you by the Fund
or such other persons as it may authorize.
8. The Fund will from time to time deposit or cause to be deposited with
you, as Depositary and as agent for tendering holders of Shares, within a
reasonable time after the Fund's acceptance for purchase of tendered Shares, an
amount equal to the aggregate purchase price of all Shares to be purchased which
you then hold. The Fund will deposit with you or cause to be deposited with you
an amount equal to the total stock transfer taxes, if any, payable by the Fund
pursuant to the provisions of Instruction 6 of the Letter of Transmittal in
respect of the transfer of all the Shares to be purchased which you hold. You
shall thereupon, as promptly as possible, (a) purchase and affix appropriate
stock transfer tax stamps, (b) cause the tendered Shares which have been thus
paid for to be transferred and delivered to the Fund by you, and (c) send a
check for the purchase price (less the amount, if any, of any stock transfer
taxes which under Instruction 6 of the Letter of Transmittal are to be
deducted from the purchase price and, if applicable, adjusted in accordance with
the provisions of the Tender Offer) of the Shares purchased to, or in accordance
with the instruction of, each of the stockholders who has tendered Shares
deposited with you.
9. If, pursuant to the Tender Offer, the Fund does not accept the receipt
of instructions from a tendering stockholder, you shall return the certificates
for such shares to, or in accordance with the instructions of, the persons who
deposited the same, together with a letter of notice, in form satisfactory to
the Fund, explaining why the deposited Shares are being returned, and return to
the Fund any surplus funds deposited by the Fund with you.
10. In addition to the services you are to perform as provided for herein,
you shall perform as Depositary such other services as are required or
contemplated to be performed by the Depositary in the Offer to Purchase and
Letter of Transmittal, including, but not limited to, making pro-ration
computations, returning to stockholders Shares tendered but not accepted for
purchase and responding to requests for information and documents.
11. As Depositary you:
(a) shall have no obligation to make payment for any tendered Shares
unless the Fund shall have provided the necessary funds to pay in full all
amounts due and payable with respect thereto;
(b) shall have no duties or obligations other than those specifically
set forth herein or as may subsequently be requested of you by the Fund
with respect to the Tender Offer;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any stock certificates or the Shares represented thereby deposited with
you pursuant to the Tender Offer and will not be required and will make no
representations as to the validity, value or genuineness of the Tender
Offer;
(d) shall not initiate any legal action hereunder without written
approval of the Fund and then only upon such reasonable indemnity as you
may request;
(e) may rely on and shall be protected in acting upon any
certificate, instrument, opinion, notice, letter, facsimile transmission,
telegram or other
document, or any security delivered to you, and reasonably believed by
you to be genuine and to have been signed by the proper party or parties;
(f) may rely on and shall be protected in acting upon written or oral
instructions with respect to any matter relating to your acting as
Depositary specifically covered by this Depositary Agreement, or
supplementing or qualifying any such action, of Xxxxxx Xxxxxx or Xxxxxx
Xxxxxxx;
(g) may consult with counsel satisfactory to you (including counsel
for the Fund) and the written advice or opinion of such counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by you hereunder in good faith and in
accordance with such advice or opinion of such counsel;
(h) shall arrange for insurance protecting the Fund and yourself
against any liability arising out of the loss, destruction or non-delivery
of checks or certificates for any cause; and
(i) shall not at any time advise any person as to the wisdom of
making any tender pursuant to the Tender Offer, the value of the Shares or
as to any other financial or legal aspect of the Tender Offer or any
transaction related thereto.
12. It is understood and agreed that the securities, money, assets or
property (the "Property") to be deposited with or received by you as Depositary
from the Fund constitute a special, segregated account, held solely for the
benefit of the Fund and stockholders tendering Shares, as their interests may
appear, and the Property shall not be commingled with the securities, money,
assets or properties of you or any other person, firm or corporation. You hereby
waive any and all rights of lien, attachment or set-off whatsoever, if any,
against the Property so to be deposited, whether such rights arise by reason of
statutory or common law, by contract or otherwise.
13. For services rendered as Depositary hereunder, you shall be entitled
to payment as set forth on Exhibit A hereto.
14. The Fund covenants and agrees to indemnify and to hold you harmless
against any costs, expenses (including reasonable fees of your legal counsel),
losses or damages, which may be paid, incurred or suffered by or to which you
may become
subject, arising from or out of, directly or indirectly, any claims or liability
resulting from your actions as Depositary pursuant hereto; provided, that such
covenant and agreement does not extend to, and you shall not be indemnified with
respect to, such costs, expenses, losses and damages incurred or suffered by you
as a result of, or arising out of, your negligence, bad faith, or willful
failure to perform any of your obligations hereunder. In no case will the Fund
be liable under this indemnity with respect to any claim against you unless,
promptly after you have received any written assertion of a claim or have been
served with summons or other first legal process giving information as to the
nature and basis of the claim, you notify the Fund, by letter or by cable or
telex confirmed by letter, of the written assertion of such claim against you or
of any action commenced against you or of the service of any summons on you, or
other first legal process giving information as to nature and basis of the
claim. The Fund will be entitled to participate at its own expense in the
defense of any such claim. If the Fund so elects at any time after receipt of
such notices and agrees in writing that such claim is a claim for which you are
entitled to be indemnified and held harmless hereunder or if you in such notice
request and the Fund agrees, the Fund will assume the defense of any suit
brought to enforce any such claim. In the event the Fund assumes the defense of
any such suit, the Fund may select counsel of its own choosing for such purpose
and the Fund will not be liable for the fees and expenses of any additional
counsel thereafter retained by you.
15. This Depositary Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts and shall inure to
the benefit of and the obligations created hereby shall be binding upon the
successors and assigns of the parties hereto.
16. This Depositary Agreement may be executed in separate counterparts,
each of which when executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
If the foregoing is acceptable to you, please acknowledge receipt of this
letter and confirm the arrangements herein provided by signing and returning the
enclosed copy.
Very truly yours,
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Secretary
ACCEPTED AS OF THE DATE HEREOF:
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Administration Manager
ALLIANCE MANAGED DOLLAR INCOME FUND, INC.
EXHIBIT A
FEE SCHEDULE
Administrative Fee $5,000.00
Midnight Expiration Fee $2,500.00
Letter of Transmittal Processed $7.50 per Letter of transmittal
All out of pocket expenses (i.e. envelopes, postage, etc.) will be
billed as incurred.
