Exhibit 99.2(k)(1)
AGREEMENT, made as of February 21, 1992 between MuniYield California Fund,
Inc. a corporation organized and existing under the laws of the state of
Maryland (hereinafter referred to as the "Customer"), and The Bank of New
York, a New York trust company (hereinafter referred to as the "Bank").
WITNESSETH:
That for and in consideration of the mutual promises hereinafter set forth,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
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Whenever used in this Agreement, the following words and phrases shall have
the following meanings:
1. "Business Day" shall be deemed to be each day on which the Bank is open for
business.
2. "Certificate" shall mean any notice, instruction, or other instrument in
writing, authorized or required by this Agreement to be given to the Bank by
the Customer which is signed by any Officer, as hereinafter defined, and
actually received by the Bank.
3. "Officer" shall be deemed to be the Customer's Chief Executive Officer,
President, any Vice President, the Secretary, the Treasurer, the Controller,
any Assistant Treasurer and any Assistant Secretary duly authorized by the
Board of Directors of the Customer to execute any Certificate, instruction,
notice or other instrument on behalf of the Customer and named in a
Certificate, as such Certificate may be amended from time to time.
4. "Prospectus" shall mean the last Customer prospectus actually received by
the Bank from the Customer with respect to which the Customer has indicated a
registration statement under the Securities Act of 1933, as amended, has
become effective, including the statement of Additional Information
incorporated by reference therein.
5. "Shares" shall mean all or any part of each class of the shares of capital
stock of the Customer which from time to time are authorized and/or issued by
the Customer and identified in a Certificate of the Secretary of the Customer
under corporate seal, as such Certificate may be amended from time to time.
ARTICLE II
APPOINTMENT OF BANK
-------------------
1. The Customer hereby constitutes and appoints the Bank as its agent to
perform the services described herein and as more particularly described in
Schedule I attached hereto (the "Services"), and the Bank hereby accepts
appointment as such agent and agrees to perform the Services in accordance
with the terms hereinafter set forth.
2. In connection with such appointment, the Customer shall deliver the
following documents to the Bank on or about the closing date of the initial
public offering:
(a) A certified copy of the Certificate of Incorporation or other
document evidencing the Customer's form of organization (the "Charter") and
all amendments thereto;
(b) A certified copy of the By-Laws of the Customer;
(c) A certified copy of a resolution of the Board of Directors of the
Customer appointing the Bank to perform the Services and authorizing the
execution and delivery of this Agreement;
(d) A Certificate signed by the Secretary of the Customer specifying: the
number of authorized Shares, the number of such authorized Shares issued and
currently outstanding, and the names and specimen signatures of all persons
duly authorized by the Board of Directors of the Customer to execute any
Certificate on behalf of the Customer, which Certificate. may be amended from
time to time;
(e) A Specimen Share certificate for each class of Shares in the form
approved by the Board of Directors of the Customer, together with a
Certificate signed by the Secretary of the Customer as to such approval;
(f) A copy of the Customer's Registration Statement, filed by the
Customer with the Securities and Exchange Commission under the Securities Act
of 1933, as amended.
(g) An opinion of counsel for the Customer with respect to the validity
of the authorized and outstanding Shares, whether such Shares are fully paid
and non-assessable and the status of such Shares under the Securities Act of
1933, as amended, and any other applicable law or regulation (i.e., if subject
to registration, that they have been registered and that the Registration
Statement has become effective or, if exempt, the specific grounds therefor).
3. The Customer shall furnish the Bank with a sufficient supply of blank Share
certificates and from time to time will renew such supply upon request of the
Bank. Such blank Share certificates shall be properly signed, by facsimile or
otherwise, by officers of the Customer authorized by law or by the By-Laws to
sign Share certificates, and, if required, shall bear the corporate seal or a
facsimile thereof.
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
------------------------------------
1. The Customer shall deliver to the Bank a certified copy of the amendment to
the Charter giving effect to such increase, decrease or change, on or before
the effective date of any increase, decrease or other change in the total
number of Shares authorized to be issued.
(a) A certified copy of the amendment to the Charter giving effect to
such increase, decrease or change;
(b) An opinion of counsel for the Customer with respect to the validity
of the Shares and the status of such Shares under the Securities Act of 1933,
as amended, and any other applicable federal law or regulations (i.e., if
subject to registration, that they have been registered and that the
Registration Statement has become effective or, if exempt, the specific
grounds therefor); and
(c) In the case of an increase, if the appointment of the Bank was
theretofore expressly limited, a certified copy of a resolution of the Board
of Directors of the Customer increasing the authority of the Bank.
2. Prior to the issuance of any additional Shares pursuant to stock dividends,
stock splits or otherwise, and prior to any reduction in the number of Shares
outstanding, the Customer shall deliver the following documents to the Bank:
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(a) A certified copy of the resolutions adopted by the Board of Directors
and/or the shareholders of the Customer authorizing such issuance of
additional Shares of the Customer or such reduction, as the case may be;
(b) A certified copy of the order or consent, if applicable, of each
governmental or regulatory authority required by law as a prerequisite to the
issuance or reduction of such Shares; and
(c) An opinion of counsel for the Customer with respect to the validity
of the Shares and the status of such the Shares under the Securities Act of
1933, as amended, and any other applicable law or regulation (i.e., if subject
to registration, that they have been registered and that the Registration
Statement has become effective, or, if exempt, the specific grounds therefor).
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
--------------------------------------
1. In the case of any negative stock split, recapitalization or other capital
adjustment requiring a change in the form of Share certificates, the Bank will
issue Share certificates in the new form in exchange for, or upon transfer of,
outstanding Share certificates in the old form, upon receiving:
(a) A Certificate authorizing the issuance of Share certificates in the
new form;
(b) A certified copy of any amendment to the Charter with respect to the
change;
(c) Specimen Share certificates for each class of Shares in the new form
approved by the Board of Directors of the Customer, with a Certificate signed
by the Secretary of the Customer as to such approval;
(d) A certified copy of the order or consent of each governmental or
regulatory authority required by law as a prerequisite to the issuance of the
Shares in the new form, and an opinion of counsel for the Customer that the
order or consent of no other governmental or regulatory authority is required;
and
(e) An opinion of counsel for the Customer with respect to the validity
of the Shares in the new form and the status of such Shares under the
Securities Act of 1933, as amended, and any other applicable law or regulation
(i.e., if subject to registration that the Shares have been registered and
that the Registration Statement has become effective or, if exempt, the
specific grounds therefor).
2. The Customer shall furnish the Bank with a sufficient supply of blank Share
certificates in the new form, and from time to time will replenish such supply
upon the request of the Bank. Such blank Share certificates shall be properly
signed, by facsimile or otherwise, by Officers of the Customer authorized by
law or by the By-Laws to sign Share Certificates and, if required, shall bear
the corporate seal or a facsimile thereof.
ARTICLE V
ISSUANCE AND TRANSFER OF SHARES
-------------------------------
1. (a) The Bank will issue Share certificates upon receipt of a Certificate
from an Officer, but shall not be required to issue Share certificates after
it has received from an appropriate federal or state authority written
notification that the sale of Shares has been suspended or discontinued, and
the Bank shall be entitled to rely upon such written notification. The Bank
shall not be responsible for the payment
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of any original issue or other taxes required to be paid by the Customer in
connection with the issuance of any shares.
(b) Shares will be transferred upon presentation to the Bank of Share
certificates in form deemed by the Bank properly endorsed, for transfer,
accompanied by such documents as the Bank deems necessary to evidence the
authority of the person making such transfer, and bearing satisfactory
evidence of the payment of applicable stock transfer taxes. In the case of
small estates where no administration is contemplated, the Bank may, when
furnished with an appropriate surety bond, and without further approval of the
Customer, transfer Shares registered in the name of the decedent where the
current market value of the Shares being transferred does not exceed such
amount as may from time to time be prescribed by the various states. The Bank
reserves the right to refuse to transfer Shares until it is satisfied that the
endorsements on Share certificates are valid and genuine, and for that purpose
it may require, unless otherwise instructed by an Officer of the Customer, a
guaranty of signature by a member firm of the New York Stock Exchange or by a
bank or trust company acceptable to the Bank. The Bank also reserves the right
to refuse to transfer Shares until it is satisfied that the requested transfer
is legally authorized, and it shall incur no liability for the refusal in good
faith to make transfers which the Bank, in its judgment, deems improper or
unauthorized, or until it is satisfied that there is no basis to any claims
adverse to such transfer. The Bank may, in effecting transfers of Shares, rely
upon those provisions of the Uniform Act for the Simplification of Fiduciary
Security Transfers or the Uniform Commercial Code, as the same may be amended
from time to time, applicable to the transfer of securities, and the Customer
shall indemnify the Bank for any act done or omitted by it in good faith in
reliance upon such laws.
(c) All certificates representing Shares that are subject to restrictions
on transfer (e.g., securities acquired pursuant to an investment
representation, securities held by controlling persons, securities subject to
stockholders' agreements, etc.), other than the general restrictions on the
transferability of the Shares described in the Prospectus, shall be stamped
with a legend describing the extent and conditions of the restrictions or
referring to the source of such restrictions. The Bank assumes no
responsibility with respect to the transfer of restricted securities where
counsel for the Customer advises that such transfer may be properly effected.
(d) Notwithstanding the foregoing or any other provision contained in
this Agreement to the contrary, the Bank shall be fully protected by the
Customer in not requiring any instruments, documents, assurances, endorsements
or guarantees, including, without limitation, any signature guarantees, in
connection with a transfer of Shares whenever the Bank reasonably believes
that requiring the same would be inconsistent with the transfer procedures as
described in the Prospectus.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
---------------------------
1. The Customer shall furnish to the Bank a copy of a resolution of its Board
of Directors, certified by the Secretary or any Assistant Secretary, either
(i) setting forth the date of the declaration of a dividend or distribution,
the date of accrual or payment, as the case may be, the record date as of
which shareholders entitled to payment, or accrual, as the case may be, shall
be determined, the amount per Share of such dividend or distribution, the
payment date on which all previously accrued and unpaid dividends are to be
paid, and the total amount, if any, payable to the Bank on such payment date,
or (ii) authorizing the declaration of dividends and distributions on a
periodic basis and authorizing the Bank to rely on a Certificate setting forth
the information described in subsection (i) of this paragraph.
2. Prior to the payment date specified in such Certificate or resolution, as
the case may be, the Customer shall, in the case of a cash dividend or
distribution, pay to the Bank an amount of cash, sufficient for the Bank to
make the payment, specified in such Certificate or resolution, to the
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shareholders of record as of such payment date. The Bank will, upon receipt of
any such cash, (i) in the case of shareholders who are participants in a
dividend reinvestment and/or cash purchase plan of the Customer, reinvest such
cash dividends or distributions in accordance with the terms of such plan, and
(ii) in the case of shareholders who are not participants in any such plan,
make payment of such cash dividends or distributions to the shareholders of
record as of the record date by mailing a check, payable to the registered
shareholder, to the address of record or dividend mailing address. The Bank
shall not be liable for any improper payment made in accordance with a
Certificate or resolution described in the preceding paragraph. If the Bank
shall not receive sufficient cash prior to the payment date to make payments
of any cash dividend or distribution pursuant to subsections (i) and (ii)
above to all shareholders of the Customer as of the record date, the Bank
shall, upon notifying the Customer, withhold payment to all shareholders of
the Customer as of the record date until sufficient cash is provided to the
Bank.
3. It is understood that the Bank shall in no way be responsible for the
determination of the rate or form of dividends or distributions due to the
shareholders.
4. It is understood that the Bank shall file such appropriate information
returns concerning the payment of dividends and distributions with the proper
federal, state and local authorities as are required by law to be filed by the
Customer but shall in no way be responsible for the collection or withholding
of taxes due on such dividends or distributions due to shareholders, except
and only to the extent required of it by applicable law.
ARTICLE VII
CONCERNING THE CUSTOMER
-----------------------
1. The Customer shall promptly deliver to the Bank written notice of any
change in the Officers authorized to sign Share certificates, Certificates,
notifications or requests, together with a specimen signature of each new
Officer. In the event any Officer who shall have signed manually or whose
facsimile signature shall have been affixed to blank Share certificates shall
die, resign or be removed prior to issuance of such Share certificates, the
Bank may issue such Share certificates as the Share certificates of the
Customer notwithstanding such death, resignation or removal, and the Customer
shall promptly deliver to the Bank such approvals, adoptions or ratifications
as may be required by law.
2. Each copy of the Charter of the Customer and copies of all amendments
thereto shall be certified by the Secretary of State (or other appropriate
official) of the state of incorporation, and if such Charter and/or amendments
are required by law also to be filed with a county or other officer or
official body, a certificate of such filing shall be filed with a certified
copy submitted to the Bank. Each copy of the By-Laws and copies of all
amendments thereto, and copies of resolutions of the Board of Directors of the
Customer, shall be certified by the Secretary or an Assistant Secretary of the
Customer under the corporate seal.
3. It shall be the sole responsibility of the Customer to deliver to the Bank
the Customer's currently effective Prospectus and, for purposes of this
Agreement, the Bank shall not be deemed to have notice of any information
contained in such Prospectus until it is actually received by the Bank.
ARTICLE VIII
CONCERNING THE BANK
-------------------
1. The Bank shall not be liable and shall be fully protected in acting upon
any oral instruction, writing or document reasonably believed by it to be
genuine and to have been given, signed or made by the proper person or persons
and shall not be held to have any notice of any change of authority of any
person until receipt of written notice thereof from an Officer of the
Customer. It shall also be protected in
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processing Share certificates which it reasonably believes to bear the proper
manual or facsimile signatures of the duly authorized officers of the Customer
and the proper countersignature of the Bank.
2. The Bank may establish such additional procedures, rules and regulations
governing the transfer or registration of Share certificates as it may deem
advisable and consistent with such rules and regulations generally adopted by
bank transfer agents.
3. The Bank may keep such records as it deems advisable but not inconsistent
with resolutions adopted by the Board of Directors of the Customer. The Bank
may deliver to the Customer from time to time at its discretion, for
safekeeping or disposition by the Customer in accordance with law, such
records, papers, Share certificates which have been cancelled in transfer or
exchange and other documents accumulated in the execution of its duties
hereunder as the Bank may deem expedient, other than those which the Bank is
itself required to maintain pursuant to applicable laws and regulations, and
the Customer shall assume all responsibility for any failure thereafter to
produce any record, paper, cancelled Share certificate or other document so
returned, if and when required. The records maintained by the Bank pursuant to
this paragraph which have not been previously delivered to the Customer
pursuant to the foregoing provisions of this paragraph shall be considered to
be the property of the Customer, shall be made available upon request for
inspection by the Officers, employees and auditors of the Customer, and shall
be delivered to the Customer upon request and in any event upon the date of
termination of this Agreement, as specified in Article IX of this Agreement,
in the form and manner kept by the Bank on such date of termination or such
earlier date as may be requested by the Customer.
4. The Bank may employ agents or attorneys-in-fact at the reasonable expense
of the Customer, and shall not be liable for any loss or expense arising out
of, or in connection with, the actions or omissions to act of its agents or
attorneys-in-fact, so long as the Bank acts in good faith and without
negligence or willful misconduct in connection with the selection of such
agents or attorneys-in-fact.
5. The Bank shall not be liable for any loss or damage, including reasonable
attorney's fees, resulting from its actions or omissions to act or otherwise,
except for any loss or damage arising out of its own negligence or willful
misconduct.
ARTICLE IX
TERMINATION
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Either of the parties hereto may terminate this Agreement by giving to the
other party a notice in writing specifying the date of such termination, which
shall be not less than 60 days after the date of receipt of such notice. In
the event such notice is given by the Customer, it shall be accompanied by a
copy of a resolution of the Board of Directors of the Customer, certified by
the Secretary electing to terminate this Agreement and designating a successor
transfer agent or transfer agents. In the event such notice is given by the
Bank, the Customer shall, on or before the termination date, deliver to the
Bank a copy of a resolution of its Board of Directors certified by the
Secretary designating a successor transfer agent or transfer agents. In the
absence of such designation by the Customer, the Bank may designate a
successor transfer agent. If the Customer fails to designate a successor
transfer agent and if the Bank is unable to find a successor transfer agent,
the Customer shall, upon the date specified in the notice of termination of
this Agreement and delivery of the records maintained hereunder, be deemed to
be its own transfer agent and the Bank shall thereafter be relieved of all
duties and responsibilities hereunder. Upon termination hereof, the Customer
shall pay to the Bank such compensation as may be due to the Bank as of the
date of such termination, and shall reimburse the Bank for any disbursements
and expenses made or incurred by the Bank and payable or reimbursable
hereunder.
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ARTICLE X
MISCELLANEOUS
-------------
1. The Customer agrees that prior to effecting any change in the Prospectus
which would increase or alter the duties and obligations of the Bank
hereunder, it shall advise the Bank of such proposed change at least ten
business days prior to the intended date of the same, and shall proceed with
such change only if it shall have received the written consent of the Bank
thereto.
2. The indemnities contained herein shall be continuing obligations of the
Customer, its successors and assigns, notwithstanding the termination of this
Agreement.
3. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Customer shall be sufficiently given if addressed
to the Customer and mailed or delivered to it at 000 Xxxxxxxx Xxxx Xxxx,
Xxxxxxxxxx, XX 00000 or at such place as the Customer may from time to time
designate in writing.
4. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Bank shall be sufficiently given if addressed to
the Bank and mailed or delivered to it at its office at 000 Xxxxxxx Xxxxxx
(00X), Xxx Xxxx. Xxx Xxxx 00000 or at such other place as the Bank may from
time to time designate in writing.
5. This Agreement may not be amended or modified in any manner except by a
written agreement duly authorized and executed by both parties. Any duly
authorized Officer may amend any Certificate naming Officers authorized to
execute and deliver Certificates, instructions, notices or other instruments,
and the Secretary or any Assistant Secretary may amend any Certificate listing
the shares of capital stock of the Customer for which the Bank performs
Services hereunder.
6. This Agreement shall extend to and shall be binding upon the parties hereto
and their respective successors and assigns; provided however, that this
Agreement shall not be assignable by either party without the prior written
consent of the other party.
7. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
8. This Agreement may be executed in any number of counterparts each of which
shall be deemed to be an original; but such counterparts, together, shall
constitute only one instrument.
9. The provisions of this Agreement are intended to benefit only the Bank and
the Customer, and no rights shall be granted to any other person, by virtue of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officer, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as of the day and
year first above written.
Attest: MUNIYIELD CALIFORNIA FUND, INC.
/s/ Xxxx Xxxxxxx BY: /s/ Xxxxxx Xxxxxxx
------------------------------------ -----------------------
Xxxx Xxxxxxx Xxxxxx Xxxxxxx
Title: Treasurer
Attest: THE BANK OF NEW YORK
------------------------------------ BY:________________________________
Title:
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TERMS OF PROPOSAL
o The Bank of New York does not levy a conversion charge or setup fee for
assumption of records in an automated tape format in connection with our
appointment as Transfer Agent and Registrar. Any charges made by your
existing agent in connection with our assumption of your shareholder
records in an automated tape format would be passed through to your
account.
o Out-of-pocket expenses are defined as costs paid by The Bank of New York
for the purchase of goods or services required to fulfill our obligations
under our agreement. These expenses may include, but not be limited to,
postage, insurance on physical transfer items, and costs for obtaining
prices for security valuations. These expenses are billed at our cost, on a
pro-rata basis for goods and services received.
o There will not be a usage charge applied for utilizing the Bank's Stock
Transfer Inquiry System. Connect time will be billed at cost, based on a
dedicated line or dial-up expense.
o For issuing purchase warrants, stock dividends and splits, the handling of
tenders & exchanges of stock, subscriptions, preparing state information
returns, and any other services not covered by this fee schedule, charges
will be based on an analysis and appraisal of the services rendered.
o All fees are based upon the use of automatic equipment. Any services
requiring manual processing and/or overtime, will result in a special or
higher charge.
o The Bank of New York's minimum charge is $10,000. If at the end of each
year (12 months from appointment date) the total fees are less than the
minimum, the difference will be billed to your account. The fees are
charged on a monthly basis.
o In the event that we do not enter into a written agreement within three
months of the date of this proposal, this offer will be subject to
revision.
Proposal Submitted by: /s/ Xxxxx X. May
---------------------------------
Xxxxx X. May
Assistant Treasurer
Proposal Accepted by: /s/ Xxxxxx Xxxxxxx
---------------------------------
Xxxxxx Xxxxxxx
Treasurer
Date: February 21, 0000
XXX
XXXX XX
XXX
XXXX
XXXXXXXXX XXXXXXXXXX FUND, INC.
STOCK TRANSFER FEE SCHEDULE
January 3, 1992
Account Maintenance Fee, (per account). $2.64
Certificate Issuance (per certificate). $1.20
Check Issuance Fee, (per check)........ $0.25
Fees will be billed monthly and include all services, as illustrated below.
Fees will remain in effect for a period of 2 years from the date of our
appointment.
Account Maintenance:
We will:
o Maintain all shareholder name and address records and process all
changes.
o Issue and register all certificates.
o Record all certificate transactions.
o Answer shareholder inquiries, including written correspondence.
o Provide hard-copy or microfiche reports of daily transfer activity.
o Address, insert and mail up to three quarterly reports and one annual
report. (The material must be adaptable to automatic equipment.)
o Address, insert and mail proxy cards and standard proxy material for annual
meeting. (The material must be adaptable to automatic equipment.)
o Tabulate proxies and provide terminal access to our database for your
annual meeting.
o Provide a secondary proxy mailing to shareholders who have not voted.
o Provide a shareholder list and a final voted and unvoted list as of the
annual meeting date.
o Mail W-9 certifications.
o Solicit taxpayer identification numbers on new accounts.
o Issue, enclose and reconcile each dividend check.
THE
BANK OF
NEW
YORK
o File IRS Forms 1099 and 1096 covering dividends paid, plus Forms 1042S and
1042 NRA Tax (for foreign holders).
o Initiate mailings to shareholders with uncashed dividend checks over one
year old.
o Cease delivery of checks to undeliverable accounts.
o Provide escheatment reporting.
o Provide arrangements for handling restricted stock.
o Process all stock options.
o Place, remove and maintain all stop transfers.
o Process all legal transfers.
o Replace all lost, stolen or destroyed checks and certificates.
o Provide three analytical reports as follows:
1 Geographical Analysis
1 Class Code Analysis
1 Share Range Analysis
o Install and provide access via company terminal to The Bank of New
York database. Training will be completed on site at your offices by
personnel from by The Bank of New York.
Dividend Reinvestment Plan
Account Maintenance Fee................ $3.00
This account maintenance fee will be billed monthly at a rate of $0.25 per
dividend reinvestment account record.
We will:
o Reinvest each dividend
o Process terminations
o Process optional cash payments and send acknowledgements
o Provide an efficient way of purchasing and selling shares through our
Discount Brokerage services. This service is affiliated with our Trust
Sector and will be provided at a discounted rate.
THE
BANK OF
NEW
YORK
