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EXHIBIT 2(k)(1)
THIS (the "Agreement"), dated as of
November __, 1999, is made by and between Xxxxxx Municipal Income Trust, a
Massachusetts business trust (the "Company"), and Xxxxxxx Xxxxx Barney Inc. (the
"Remarketing Agent").
The Company has issued and sold 10,000 shares of its
Preferred Shares, Series E (the "Preferred Shares"). Intending to be legally
bound, the parties hereto agree as follows:
1. Definitions. Capitalized terms used and not defined in
this Agreement shall have the meanings assigned to them in the Company's Amended
and Restated Certificate of Designation For Preferred Shares (the "Certificate
of Designation"), a copy of which is being delivered herewith.
2. Acceptance of Duties. The Remarketing Agent agrees as
follows:
(a) It will perform the duties and obligations of
Remarketing Agent for the Preferred Shares as specified in the Certificate of
Designation and in this Agreement in compliance with the provisions of
applicable laws.
(b) The remarketing process will be conducted on the
following schedule and in the following manner (all times are New York City
time):
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Last Business Day of a Dividend Period:
Beginning Not Later Than The Remarketing Agent will
1:00 p.m.: determine and, upon request,
make available to all interested
persons non-binding indications
of the Dividend Rate based upon
then-current Remarketing Conditions.
By 3:00 p.m.: Owners of Preferred Shares will
be deemed to have tendered
shares for sale by remarketing
at $5,000 per share unless they
have given contrary instructions
to the Remarketing Agent.
After 3:00 p.m.: The Remarketing Agent will
solicit and receive orders from
prospective investors to
purchase tendered Preferred
Shares. The Remarketing Agent
will establish a Dividend Rate
which will be the lowest rate,
not in excess of the Maximum
Dividend Rate, which it
determines will permit the
remarketing of the Preferred
Shares at $5,000 per share.
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First Day of Next Dividend Period:
Opening of Business: The Remarketing Agent will
continue, if necessary,
remarketing Preferred Shares as
described above.
By 1:00 p.m.: The Remarketing Agent will have
completed remarketing and will
advise the owners as to the
Dividend Rate applicable to the
Dividend Period commencing on
that day and of any failure to
remarket.
By 2:30 p.m.: New owners must deliver the
purchase price as instructed by
the Remarketing Agent. Former
owners will be paid the
proceeds of the remarketing of
their shares.
3. Fees and Expenses. (a) The Company agrees to pay to the
Remarketing Agent, as compensation for its services hereunder, such fees as may
be agreed upon by the parties from time to time. Initially, the fee will be
equal to .25% of the Company's assets attributable to the
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Preferred Shares.
(b) The Company shall reimburse the Remarketing Agent for
its reasonable out-of-pocket expenses incurred by it in connection with the
performance of its services hereunder, including counsel fees.
4. Broker-Dealer Participation. The Remarketing Agent
may enter into broker-dealer agreements with broker-dealers ("Broker-Dealers")
which provide for Broker-Dealer participation in the remarketing process. The
Company shall not be responsible for the fees and out-of-pocket expenses of such
Broker-Dealers or for ensuring compliance by such Broker-Dealers with the terms
of this Agreement.
5. Disclosure Document and Other Information. (a) If the
Remarketing Agent determines that it is necessary or desirable to use a
disclosure document in connection with the remarketing of the Preferred Shares,
the Remarketing Agent will notify the Company and the Company will provide to
the Remarketing Agent a disclosure document or documents (which may include the
Prospectus distributed in connection with the initial sale of the Preferred
Shares, as amended or supplemented by the Company) satisfactory to the
Remarketing Agent and its counsel in respect of the Preferred Shares (the
"Disclosure Documents"). The Company will supply the Remarketing Agent with such
number of copies of the Disclosure Documents as the Remarketing Agent reasonably
requests from time to time. The Company will supplement and amend the Disclosure
Documents so that at all times the Disclosure Documents (as so amended or
supplemented) will not contain any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(b) The Company agrees to furnish to the Remarketing Agent
(i) as soon as
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available all regular and periodic reports, if any, which the Company files with
the Securities and Exchange Commission under the Investment Company Act of 1940,
as amended, or the Securities Exchange Act of 1934, as amended, and all reports
which the Company provides generally to holders of its publicly held securities
and (ii) from time to time, such other information concerning the Company as the
Remarketing Agent may reasonably request.
6. Indemnification. (a) The Company and Xxxxxxx Xxxxxx
Investments, Inc. ("SKI") jointly and severally agree to indemnify and hold
harmless the Remarketing Agent (and each person, if any, controlling the
Remarketing Agent) against any and all losses, claims, damages, liabilities or
expenses (including reasonable costs of investigation) arising out of or based
upon its agency under this Agreement. This indemnity agreement is in addition to
any liability which the Company or SKI may otherwise have.
(b) If any action or claim shall be brought or asserted
against the Remarketing Agent or any person controlling the Remarketing Agent in
respect of which indemnity may be sought from the Company or SKI, the
Remarketing Agent or any such controlling person shall promptly notify the
Company in writing, and the Company or SKI shall assume the defense thereof,
including the employment of counsel and the payment of all expenses. The
Remarketing Agent or such controlling person shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall be borne by the Remarketing
Agent or such controlling person unless (i) the employment thereof has been
specifically authorized by the Company or SKI in writing, (ii) the Company or
SKI has failed to assume the defense and employ counsel or (iii) the named
parties to any such action (including any impleaded parties) include both the
Remarketing Agent or such controlling person and the Company or SKI and the
Remarketing Agent or such controlling person shall have been advised
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by counsel that representation of such indemnified party and the indemnifying
party by the same counsel would be inappropriate (whether or not such
representation by the same counsel has been proposed) under applicable standards
of professional conduct due to actual or potential differing interests between
them (in which case neither the Company nor SKI shall have the right to assume
the defense of such action on behalf of the Remarketing Agent or such
controlling person, it being understood, however, that the Company and SKI
shall, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for the Remarketing Agent or such controlling person, which
firm (or firms) shall be designated in writing by the Remarketing Agent and
reasonably satisfactory to the Company or SKI). Neither the Company nor SKI
shall be liable for any settlement of any such action effected without its
written consent, but if settled with such written consent, or if there should be
a final judgment for the plaintiff in any such action, the Company and SKI
jointly and severally agree to indemnify and hold harmless the Remarketing Agent
or such controlling person from and against any loss or liability by reason of
such settlement or judgment.
(c) The Remarketing Agent agrees to indemnify and hold
harmless the Company (and each person, if any, controlling the Company), to
the same extent as the foregoing indemnity from the Company to the Remarketing
Agent, but only with respect to information relating to the Remarketing Agent
furnished in writing by it expressly for use in connection with a Disclosure
Document. This indemnity agreement is in addition to any liability which the
Remarketing Agent may otherwise have. In case any action or claim shall be
brought or asserted against the Company or any such controlling person, in
respect of which indemnity may be sought against the
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Remarketing Agent, the Remarketing Agent shall have the rights and duties given
to the Company, and the Company and any such controlling person shall have the
rights and duties given to the Remarketing Agent, by the preceding paragraphs.
(d) If the indemnification provided herein is unavailable
to the Remarketing Agent or any person controlling the Remarketing Agent in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying the Remarketing
Agent or such controlling person, shall contribute to the amount paid or payable
by the Remarketing Agent or such controlling person as a result of such losses,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received and expected by the
Company on the one hand and by the Remarketing Agent on the other hand from the
remarketing of the Preferred Shares or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Remarketing Agent on the other in connection with the acts or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations.
(e) The Company, SKI and the Remarketing Agent agree that
it would not be just and equitable if contribution pursuant hereto were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
preceding paragraph. The amount paid or payable by the Remarketing Agent or any
person controlling the Remarketing Agent as a result of the losses, claims,
damages, liabilities and expenses referred to in the preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by the Remarketing
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Agent or such controlling person in connection with defending any such action or
claim.
7. Remarketing Agent's Liabilities. The Remarketing Agent
shall incur no liability to the Company for its actions taken as Remarketing
Agent pursuant to the terms hereof and of the Certificate of Designation without
gross negligence or in the absence of willful misconduct. The Remarketing Agent
will not be liable to the Company on account of the failure of any person to
whom the Remarketing Agent has sold any Preferred Shares to pay for it or to
deliver any document in respect of such sale. The undertaking of the Remarketing
Agent to remarket any Preferred Shares shall be on a "best efforts" basis.
8. Termination. This Agreement may be terminated, at any
time by the Company, by giving at least 30 days notice to the Remarketing Agent,
and at any time by the Remarketing Agent, by giving at least 30 days notice to
the Company. The Remarketing Agent will not be obligated to remarket the
Preferred Shares, or to determine Dividend Rates therefor, if there is a
material misstatement or omission in any Disclosure Document or if at any time
it shall determine for any reason that it is not advisable to remarket the
Preferred Shares by reason of (i) a pending or proposed change in applicable tax
laws, (ii) a material adverse change in the financial condition of the Company,
(iii) a banking moratorium, (iv) domestic or international hostilities, (v) a
downgrading or withdrawal of one or more of the ratings of the Preferred Shares,
(vi) an imposition of material restrictions on the Preferred Shares or similar
obligations, (vii) an amendment of the Agreement and Declaration of Trust of the
Company, the Certificate of Designation or the By-Laws of the Company which, in
the opinion of the Remarketing Agent, materially and adversely changes the
nature of the Preferred Shares or the remarketing procedures therefor, (viii)
the existence of a Non-Payment Period, or (ix) a material misstatement or
omission in any Disclosure Document. Notwithstanding the provisions of the first
sentence of this Section
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8, the Remarketing Agent may terminate this Agreement with immediate effect, by
giving notice to the Company, upon the occurrence of any of the conditions
described in the second sentence of this Section 8. The provisions of Section 6
hereof will continue in effect as to actions prior to the date of termination,
and the Company and SKI will pay to the Remarketing Agent or any person
controlling the Remarketing Agent any amounts owing at the time of termination.
9. Dealing In Securities by Remarketing Agent. The
Remarketing Agent, either as principal or agent, may buy, sell, own, hold and
deal in the Preferred Shares, and may join in any action which any Owner of the
Preferred Shares may be entitled to take with like effect as if it did not act
in any capacity hereunder. The Remarketing Agent agrees that the purchase of
Preferred Shares for its own account or the account of its affiliates will be
upon terms no more favorable to it than those pertaining to the Preferred Shares
in the market in general at the time of such purchase and that neither it nor
its affiliates will elect to retain Preferred Shares at the time of a tender
pursuant to the Certificate of Designation if the Preferred Shares could be
remarketed pursuant to the Certificate of Designation on terms more favorable to
the Company than the terms upon which the Remarketing Agent or such affiliates
would continue to hold it. The Remarketing Agent will remarket all tendered
Preferred Shares on behalf of other Owners before remarketing any Preferred
Shares owned by it. The Remarketing Agent, either as principal or agent, may
also engage in or be interested in any financial or other transaction with the
Company and may act as depository, trustee, or agent for any committee or body
of owners of the Preferred Shares or other obligations of the Company as freely
as if it had no obligations hereunder or under the Certificate of Designation.
10. Records. The Remarketing Agent agrees to keep books
and records relating to its activities as Remarketing Agent in accordance with
standard industry practice and make
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such books and records available to the Company upon reasonable request.
11. Notices. Unless otherwise provided herein, all
notices, requests, demands and formal actions hereunder shall be in writing and
mailed, telegraphed or sent by facsimile transmission or delivered, as follows:
If to the Company:
Xxxxxx Municipal Income Trust
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
If to the Remarketing Agent:
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Short-Term Preferred Sales and Trading
Telephone No.: (212) 816-
Telecopier No.: (212) 816-
Each of the above parties may, by written notice given
hereunder to the others, designate any further or different addresses to which
subsequent notices, certificates, requests or other communications shall be
sent. In addition, the parties hereto may agree to any other means by which
subsequent notices, certificates, requests or other communications may be sent.
12. Successors. Any successor of the Remarketing Agent,
any director or officer, or any person controlling the Remarketing Agent, as the
case may be, shall be entitled to the benefits of the agreements contained
herein.
13. Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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14. Amendment. This Agreement may not be modified or
amended except by a written instrument signed by each of the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
XXXXXX MUNICIPAL INCOME TRUST
By:
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Title:
XXXXXXX XXXXX BARNEY INC.
By:
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Title:
Agreed to and accepted by:
XXXXXXX XXXXXX INVESTMENTS, INC.
By:
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Title:
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