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EXHIBIT 13(b)
AUCTION AGENT AGREEMENT
between
and
IBJ WHITEHALL BANK & TRUST COMPANY
Dated as of , 1999
Relating to
AUCTION MARKET PREFERRED STOCK(R)
("AMPS"(R)),
Series A and B
of
(R) Registered trademark of Xxxxxxx Xxxxx & Co., Inc.
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This Auction Agent Agreement, dated as of , 1999, is between
, a Maryland corporation (the "Company"), and
IBJ WHITEHALL BANK & TRUST COMPANY, a New York banking corporation.
The Company proposes to duly authorize and issue of Auction
Market Preferred Stock(R), Series A ("Series A AMPS"), and of Auction
Market Preferred Stock(R), Series B ("Series B AMPS"), each with a par value of
$.10 per share and a liquidation preference of $25,000 per share plus an amount
equal to accumulated but unpaid dividends (whether or not earned or declared),
pursuant to the Company's Articles Supplementary (as defined below). The Series
A AMPS and Series B AMPS are sometimes herein referred to together as the
"AMPS." A separate Auction (as defined below) will be conducted for each series
of AMPS. The Company desires that IBJ Whitehall Bank & Trust Company perform
certain duties as agent in connection with each Auction of shares of AMPS (in
such capacity, the "Auction Agent"), and as the transfer agent, registrar,
dividend disbursing agent and redemption agent with respect to the shares of
AMPS (in such capacity, the "Paying Agent"), upon the terms and conditions of
this Agreement, and the Company hereby appoints IBJ Whitehall Bank & Trust
Company as said Auction Agent and Paying Agent in accordance with those terms
and conditions (hereinafter generally referred to as the "Auction Agent," except
in Sections 3 and 4 below).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company and the Auction Agent agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1. Terms Defined by Reference to Articles Supplementary.
Capitalized terms not defined herein shall have the respective meanings
specified in the Articles Supplementary.
(R) Registered trademark of Xxxxxxx Xxxxx & Co., Inc.
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1.2 Terms Defined Herein.
As used herein and in the Settlement Procedures (as defined below), the
following terms shall have the following meanings, unless the context otherwise
requires:
(a) "Affiliate" shall mean any Person, other xxxx Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, made known to the Auction
Agent to be controlled by, in control of, or under common control with,
the Company or its successors.
(b) "Agent Member" of any Person shall mean such Person's
agent member of the Securities Depository that will act on behalf of a
Bidder.
(c) "Articles Supplementary" shall mean the Articles
Supplementary of the Company, establishing the powers, preferences and
rights of the AMPS, filed on , 1999 with the State Department of
Assessments and Taxation of the State of Maryland.
(d) "Auction" shall have the meaning specified in Section 2.1
hereof.
(e) "Auction Procedures" shall mean the Auction Procedures
that are set forth in Paragraph 10 of the Articles Supplementary.
(f) "Authorized Officer" shall mean each Senior Vice
President, Vice President, Assistant Vice President, Trust Officer, and
Assistant Secretary and Assistant Treasurer of the Auction Agent
assigned to its Corporate Trust and Agency Group and every other
officer or employee of the Auction Agent designated as an "Authorized
Officer" for purposes hereof in a communication to the Company.
(g) "Broker-Dealer Agreement" shall mean each agreement
between the Auction Agent and a Broker-Dealer substantially in the form
attached hereto as Exhibit A.
(h) "Company Officer" shall mean the Chairman and Chief
Executive Officer, the President, each Vice President (whether or not
designated by a number or word or words added before or after the title
"Vice President"), the Secretary, the Treasurer, each Assistant
Secretary and each Assistant Treasurer of the Company and every other
officer or employee of the Company designated as a "Company Officer"
for purposes hereof in a notice from the Company to the Auction Agent.
(i) "Holder" shall be a holder of record of one or more shares
of AMPS, listed as such in the stock register maintained by the Paying
Agent pursuant to Section 4.6 hereof.
(j) "Settlement Procedures" shall mean the Settlement
Procedures attached as Exhibit A to the Broker-Dealer Agreement.
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1.3. 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.
(d) All references herein to a particular time of day shall be
to New York City time.
II. THE AUCTION.
2.1. Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) The Articles Supplementary provide that the Applicable
Rate on shares of each series of AMPS, as the case may be, for each
Dividend Period therefor after the Initial Dividend Period shall be the
rate per annum that a commercial bank, trust company or other financial
institution appointed by the Company advises results from
implementation of the Auction Procedures. The Board of Directors of the
Company has adopted a resolution appointing IBJ Whitehall Bank & Trust
Company as Auction Agent for purposes of the Auction Procedures. The
Auction Agent hereby accepts such appointment and agrees that, on each
Auction Date, it shall follow the procedures set forth in this Section
2 and the Auction Procedures for the purpose of determining the
Applicable Rate for the AMPS for the next Dividend Period therefor.
Each periodic operation of such procedures is hereinafter referred to
as an "Auction."
(b) All of the provisions contained in the Auction Procedures
and in the Settlement Procedures are incorporated herein by reference
in their entirety and shall be deemed to be a part hereof to the same
extent as if such provisions were set forth fully herein.
2.2. Preparation for Each Auction; Maintenance of Registry of
Existing Holders.
(a) Pursuant to Section 2.5 hereof, the Company shall not
designate any Person to act as a Broker-Dealer without the prior
written approval of the Auction Agent (which approval shall not be
withheld unreasonably). As of the date hereof, the Company shall
provide the Auction Agent with a list of the Broker-Dealers previously
approved by the Auction Agent and shall cause to be delivered to the
Auction Agent for
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execution by the Auction Agent a Broker-Dealer Agreement signed by each
such Broker-Dealer. The Auction Agent shall keep such list current and
accurate and shall indicate thereon, or on a separate list, the
identity of each Existing Holder, if any, whose most recent Order was
submitted by a Broker-Dealer on such list and resulted in such Existing
Holder continuing to hold or purchasing shares of AMPS. Not later than
five Business Days prior to any Auction Date for which any change in
such list of Broker-Dealers is to be effective, the Company shall
notify the Auction Agent in writing of such change and, if any such
change is the addition of a Broker-Dealer to such list, the Company
shall cause to be delivered to the Auction Agent for execution by the
Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer.
The Auction Agent shall have entered into a Broker-Dealer Agreement
with each Broker-Dealer prior to the participation of any such
Broker-Dealer in any Auction.
(b) In the event that the Auction Date for any Auction shall
be changed after the Auction Agent shall have given the notice referred
to in clause (vii) of Paragraph (a) of the Settlement Procedures, the
Auction Agent, by such means as the Auction Agent deems practicable,
shall give notice of such change to the Broker-Dealers not later than
the earlier of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the
old Auction Date.
(c) The provisions contained in paragraph 2 of the Articles
Supplementary concerning Special Dividend Periods and the notification
of a Special Dividend Period will be followed by the Company and, to
the extent applicable, the Auction Agent, and the provisions contained
therein are incorporated herein by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if
such provisions were set forth fully herein.
(d) (i) Except as otherwise provided in paragraph 2(f) of the
Articles Supplementary, whenever the Company intends to include any net
capital gains or other income subject to regular Federal income tax in
any dividend on shares of AMPS, the Company will notify the Auction
Agent of the amount to be so included at least five Business Days prior
to the Auction Date on which the Applicable Rate for such dividend is
to be established. Whenever the Auction Agent receives such notice from
the Company, in turn it will notify each Broker-Dealer, who, on or
prior to such Auction Date, in accordance with its Broker-Dealer
Agreement, will notify its Beneficial Owners and Potential Beneficial
Owners believed to be interested in submitting an Order in the Auction
to be held on such Auction Date. Whenever the Company includes any
additional amounts in a dividend as provided in paragraph 2(f) of the
Articles Supplementary, the Company will notify the Auction Agent of
such additional amounts to be so included in such dividend at least
five Business Days prior to the applicable Dividend Payment Date.
Whenever the Auction Agent receives such notice from the Company, in
turn it will notify the Securities Depository and each Broker-Dealer,
who, on or prior to the applicable Dividend Payment Date, in accordance
with its Broker-Dealer Agreement, will notify its Beneficial Owners.
(ii) If the Company makes a Retroactive Taxable
Allocation, the Company, within 90 days (and generally within 60 days)
after the end of its fiscal year for which a Retroactive Taxable
Allocation is made, will provide notice thereof to the
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Auction Agent and to each Holder (initially the Securities Depository)
during such fiscal year at such Holder's address as the same appears or
last appeared on the stock books of the Company. The Company, within 30
days after such notice is given to the Auction Agent, will pay to the
Auction Agent (who then will distribute to such Holders), out of funds
legally available therefor, a cash amount equal to the aggregate
Additional Dividend with respect to all Retroactive Taxable Allocations
made to such Holders during the fiscal year in question.
(e) (i) On each Auction Date, the Auction Agent shall
determine the Reference Rate and the Maximum Applicable Rate. If the
Reference Rate is not quoted on an interest basis but is quoted on a
discount basis, the Auction Agent shall convert the quoted rate to an
Interest Equivalent, as set forth in paragraph 1 of the Articles
Supplementary; or, if the rate obtained by the Auction Agent is not
quoted on an interest or discount basis, the Auction Agent shall
convert the quoted rate to an interest rate after consultation with the
Company as to the method of such conversion. Not later than 9:30 A.M.
on each Auction Date, the Auction Agent shall notify the Company and
the Broker-Dealers of the Reference Rate so determined and of the
Maximum Applicable Rate.
(ii) If the Reference Rate is the applicable "AA"
Composite Commercial Paper Rate and such rate is to be based on rates
supplied by Commercial Paper Dealers and one or more of the Commercial
Paper Dealers shall not provide a quotation for the determination of
the applicable "AA" Composite Commercial Paper Rate, the Auction Agent
immediately shall notify the Company so that the Company can determine
whether to select a Substitute Commercial Paper Dealer or Substitute
Commercial Paper Dealers to provide the quotation or quotations not
being supplied by any Commercial Paper Dealer or Commercial Paper
Dealers. The Company promptly shall advise the Auction Agent of any
such selection. If the Company does not select any such Substitute
Commercial Paper Dealer or Substitute Commercial Paper Dealers, then
the rates shall be supplied by the remaining Commercial Paper Dealer or
Commercial Paper Dealers.
(iii) If, after the date of this Agreement, there is
any change in the prevailing rating of AMPS by either of the rating
agencies (or substitute or successor rating agencies) referred to in
the definition of the Maximum Applicable Rate, thereby resulting in any
change in the corresponding applicable percentage for the AMPS, as set
forth in said definition (the "Percentage"), the Company shall notify
the Auction Agent in writing of such change in the Percentage prior to
9:00 A.M. on the Auction Date for AMPS next succeeding such change. The
Percentage for the AMPS on the date of this Agreement is as specified
in paragraph 10(a)(vii) of the Articles Supplementary. The Auction
Agent shall be entitled to rely on the last Percentage of which it has
received notice from the Company (or, in the absence of such notice,
the Percentage set forth in the preceding sentence) in determining the
Maximum Applicable Rate as set forth in Section 2.2(e)(i) hereof.
(f) (i) The Auction Agent shall maintain a current registry of
the Existing Holders of the shares of each series of AMPS for purposes
of each Auction. The Company shall use its best efforts to provide or
cause to be provided to the Auction
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Agent within ten Business Days following the date of the Closing a list
of the initial Existing Holders of each series of AMPS, and the
Broker-Dealer of each such Existing Holder through which such Existing
Holder purchased such shares. The Auction Agent may rely upon, as
evidence of the identities of the Existing Holders, such list, the
results of each Auction and notices from any Existing Holder, the Agent
Member of any Existing Holder or the Broker-Dealer of any Existing
Holder with respect to such Existing Holder's transfer of any shares of
AMPS to another Person.
(ii) In the event of any partial redemption of any
series of AMPS, upon notice by the Company to the Auction Agent of such
partial redemption, the Auction Agent promptly shall request the
Securities Depository to notify the Auction Agent of the identities of
the Agent Members (and the respective numbers of shares) from the
accounts of which shares have been called for redemption and the person
or department at such Agent Member to contact regarding such
redemption, and at least two Business Days prior to the Auction
preceding the date of redemption with respect to shares of the series
being partially redeemed, the Auction Agent shall request each Agent
Member so identified to disclose to the Auction Agent (upon selection
by such Agent Member of the Existing Holders whose shares are to be
redeemed) the number of shares of such series of AMPS of each such
Existing Holder, if any, to be redeemed by the Company, provided that
the Auction Agent has been furnished with the name and telephone number
of a person or department at such Agent Member from which it is to
request such information. In the absence of receiving any such
information with respect to an Existing Holder, from such Existing
Holder's Agent Member or otherwise, the Auction Agent may continue to
treat such Existing Holder as having ownership of the number of shares
of the series of AMPS shown in the Auction Agent's registry of Existing
Holders.
(iii) The Auction Agent shall register a transfer of
the ownership of shares of a series of AMPS from an Existing Holder to
another Existing Holder, or to another Person if permitted by the
Company, only if (A) such transfer is made pursuant to an Auction or
(B) if such transfer is made other than pursuant to an Auction, the
Auction Agent has been notified of such transfer in writing in a notice
substantially in the form of Exhibit C to the Broker-Dealer Agreements,
by such Existing Holder or by the Agent Member of such Existing Holder.
The Auction Agent is not required to accept any notice of transfer
delivered for an Auction unless it is received by the Auction Agent by
3:00 P.M. on the Business Day next preceding the applicable Auction
Date. The Auction Agent shall rescind a transfer made on the registry
of the Existing Holders of any shares of AMPS if the Auction Agent has
been notified in writing, in a notice substantially in the form of
Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the
Broker-Dealer of any Person that (i) purchased any shares of AMPS and
the seller failed to deliver such shares or (ii) sold any shares of
AMPS and the purchaser failed to make payment to such Person upon
delivery to the purchaser of such shares.
(g) The Auction Agent may request that the Broker-Dealers, as
set forth in Section 3.2(c) of the Broker-Dealer Agreements, provide
the Auction Agent with a list of their respective customers that such
Broker-Dealers believe are Beneficial Owners of shares of AMPS. The
Auction Agent shall keep confidential any such information and shall
not disclose any such information so provided to any Person other than
the relevant
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Broker-Dealer and the Company, provided that the Auction Agent reserves
the right to disclose any such information if it is advised by its
counsel that its failure to do so would be unlawful.
2.3. Auction Schedule.
The Auction Agent shall conduct Auctions in accordance with the
schedule set forth below. Such schedule may be changed by the Auction Agent with
the consent of the Company, which consent shall not be withheld unreasonably.
The Auction Agent shall give notice of any such change to each Broker-Dealer.
Such notice shall be received prior to the first Auction Date on which any such
change shall be effective.
Time Event
By 9:30 A.M. Auction Agent advises the
Company and the Broker-Dealers of
the Reference Rate and the Maximum
Applicable Rate as set forth in
Section 2.2(e)(i) hereof.
9:30 A.M. - 1:00 P.M. Auction Agent assembles information
communicated to it by Broker-Dealers
as provided in Paragraph 10(c)(i) of
the Articles Supplementary.
Submission deadline is 1:00 P.M.
Not earlier than Auction Agent makes determinations
1:00 P.M. pursuant to Paragraph 10(d)(i) of
the Articles Supplementary.
By approximately Auction Agent advises the Company
3:00 P.M. of the results of the Auction as
provided in Paragraph 10(d)(ii) of
the Articles Supplementary.
Submitted Bids and Submitted Sell
Orders are accepted and rejected in
whole or in part and shares of AMPS
allocated as provided in Paragraph
10(e) of the Articles Supplementary.
Auction Agent gives notice of the
Auction results as set forth in
Section 2.4 hereof.
2.4. Notice of Auction Results.
On each Auction Date, the Auction Agent shall notify Broker-Dealers of
the results of the Auction held on such date by telephone or through the Auction
Agent's Auction Processing System as set forth in Paragraph (a) of the
Settlement Procedures.
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2.5. Broker-Dealers.
(a) Not later than 12:00 noon on each Auction Date, the
Company shall pay to the Auction Agent in Federal Funds or similar
same-day funds an amount in cash equal to (i) in the case of any
Auction Date immediately preceding a 7-Day Dividend Period or 28-Day
Dividend Period, the product of (A) a fraction the numerator of which
is the number of days in such Dividend Period (calculated by counting
the first day of such Dividend Period but excluding the last day
thereof) and the denominator of which is 360, times (B) 1/4 of 1%,
times (C) $25,000 times (D) the sum of the aggregate number of
Outstanding shares of AMPS for which the Auction is conducted and (ii)
in the case of any Special Dividend Period, the amount determined by
mutual consent of the Company and the Broker-Dealers pursuant to
Section 3.5 of the Broker-Dealer Agreements. The Auction Agent shall
apply such moneys as set forth in Section 3.5 of the Broker-Dealer
Agreements and shall thereafter remit to the Company any remaining
funds paid to the Auction Agent pursuant to this Section 2.5(a).
(b) The Company shall not designate any Person to act as a
Broker-Dealer, or permit a Existing Holder or a Potential Beneficial
Owner to participate in Auctions through any Person other than a
Broker-Dealer, without the prior written approval of the Auction Agent,
which approval shall not be withheld unreasonably. The Company may
designate an Affiliate or Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated to act as a Broker-Dealer.
(c) The Auction Agent shall terminate any Broker-Dealer
Agreement as set forth therein if so directed by the Company.
(d) Subject to Section 2.5(b) hereof, the Auction Agent from
time to time shall enter into such Broker-Dealer Agreements as the
Company shall request.
(e) The Auction Agent shall maintain a list of Broker-Dealers.
2.6. Ownership of Shares of AMPS and Submission of Bids by the
Company and its Affiliates.
Neither the Company nor any Affiliate of the Company may submit any
Sell Order or Bid, directly or indirectly, in any Auction, except that an
Affiliate of the Company that is a Broker-Dealer may submit a Sell Order or Bid
on behalf of a Beneficial Owner or a Potential Beneficial Owner. The Company
shall notify the Auction Agent if the Company or, to the best of the Company's
knowledge, any Affiliate of the Company becomes a Beneficial Owner of any shares
of AMPS. Any shares of AMPS redeemed, purchased or otherwise acquired (i) by the
Company shall not be reissued, except in accordance with the requirements of the
Securities Act of 1933, as amended, or (ii) by its Affiliates shall not be
transferred (other than to the Company). The Auction Agent shall have no duty or
liability with respect to enforcement of this Section 2.6.
2.7. Access to and Maintenance of Auction Records.
The Auction Agent shall afford to the Company, its agents, independent
public accountants and counsel, access at reasonable times during normal
business hours to review and
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make extracts or copies (at the Company's sole cost and expense) of all books,
records, documents and other information concerning the conduct and results of
Auctions, provided that any such agent, accountant or counsel shall furnish the
Auction Agent with a letter from the Company requesting that the Auction Agent
afford such person access. The Auction Agent shall maintain records relating to
any Auction for a period of two years after such Auction (unless requested by
the Company to maintain such records for such longer period not in excess of
four years, then for such longer period), and such records, in reasonable
detail, shall accurately and fairly reflect the actions taken by the Auction
Agent hereunder. The Company agrees to keep confidential any information
regarding the customers of any Broker-Dealer received from the Auction Agent in
connection with this Agreement or any Auction, and shall not disclose such
information or permit the disclosure of such information without the prior
written consent of the applicable Broker-Dealer to anyone except such agent,
accountant or counsel engaged to audit or review the results of Auctions as
permitted by this Section 2.7, provided that the Company reserves the right to
disclose any such information if it is advised by its counsel that its failure
to do so would (i) be unlawful or (ii) expose it to liability, unless the
Broker-Dealer shall have offered indemnification satisfactory to the Company.
Any such agent, accountant or counsel, before having access to such information,
shall agree to keep such information confidential and not to disclose such
information or permit disclosure of such information without the prior written
consent of the applicable Broker-Dealer, provided that such agent, accountant or
counsel may reserve the right to disclose any such information if it is advised
by its counsel that its failure to do so would (i) be unlawful or (ii) expose it
to liability, unless the Broker-Dealer shall have offered indemnification
satisfactory to such agent, accountant or counsel.
III. THE AUCTION AGENT AS PAYING AGENT.
3.1. The Paying Agent.
The Board of Directors of the Company has adopted a resolution
appointing IBJ Whitehall Bank & Trust Company as transfer agent, registrar,
dividend disbursing agent and redemption agent for the Company in connection
with any shares of AMPS (in such capacity, the "Paying Agent"). The Paying Agent
hereby accepts such appointment and agrees to act in accordance with its
standard procedures and the provisions of the Articles Supplementary which are
specified herein with respect to the shares of AMPS and as set forth in this
Section 3.
3.2. The Company's Notices to the Paying Agent.
Whenever any shares of AMPS are to be redeemed, the Company promptly
shall deliver to the Paying Agent a Notice of Redemption, which will be mailed
by the Company to each Holder at least five Business Days prior to the date such
Notice of Redemption is required to be mailed pursuant to the Articles
Supplementary. The Paying Agent shall have no responsibility to confirm or
verify the accuracy of any such Notice.
3.3. The Company to Provide Funds for Dividends, Redemptions and
Additional Dividends.
(a) Not later than noon on each Dividend Payment Date, the
Company shall deposit with the Paying Agent an aggregate amount of
Federal Funds or similar same-day
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funds equal to the declared dividends to be paid to Holders on such
Dividend Payment Date, and shall give the Paying Agent irrevocable
instructions to apply such funds to the payment of such dividends on
such Dividend Payment Date.
(b) If the Company shall give a Notice of Redemption, then by
noon of the date fixed for redemption, the Company shall deposit in
trust with the Paying Agent an aggregate amount of Federal Funds or
similar same-day funds sufficient to redeem such shares of AMPS called
for redemption and shall give the Paying Agent irrevocable instructions
and authority to pay the redemption price to the Holders of shares of
AMPS called for redemption upon surrender of the certificate or
certificates therefor.
(c) If the Company provides notice to the Auction Agent of a
Retroactive Taxable Allocation, the Company, within 30 days after such
notice is given and by noon of the date fixed for payment of an
Additional Dividend, shall deposit in trust with the Paying Agent an
aggregate amount of Federal Funds or similar same-day funds equal to
such Additional Dividend and shall give the Paying Agent irrevocable
instructions and authority to pay the Additional Dividend to Holders
(or former Holders) entitled thereto.
3.4. Disbursing Dividends, Redemption Price and Additional
Dividends.
After receipt of the Federal Funds or similar same-day funds and
instructions from the Company described in Sections 3.3(a), (b) and (c) above,
the Paying Agent shall pay to the Holders (or former Holders) entitled thereto
(i) on each corresponding Dividend Payment Date, dividends on the shares of
AMPS, (ii) on any date fixed for redemption, the redemption price of any shares
of AMPS called for redemption and (iii) on the date fixed for payment of an
Additional Dividend, such Additional Dividend. The amount of dividends for any
Dividend Period to be paid by the Paying Agent to Holders will be determined by
the Company as set forth in Paragraph 2 of the Articles Supplementary. The
redemption price to be paid by the Paying Agent to the Holders of any shares of
AMPS called for redemption will be determined as set forth in Paragraph 4 of the
Articles Supplementary. The amount of Additional Dividends to be paid by the
Paying Agent in the event of a Retroactive Taxable Allocation to Holders will be
determined by the Company pursuant to paragraph 2(e) of the Articles
Supplementary. The Company shall notify the Paying Agent in writing of a
decision to redeem any shares of AMPS on or prior to the date specified in
Section 3.2 above, and such notice by the Company to the Paying Agent shall
contain the information required to be stated in a Notice of Redemption required
to be mailed by the Company to such Holders. The Paying Agent shall have no duty
to determine the redemption price and may rely on the amount thereof set forth
in a Notice of Redemption.
IV. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
4.1. Original Issue of Stock Certificates.
On the Date of Original Issue for any share of AMPS, one certificate
for each series of AMPS shall be issued by the Company and registered in the
name of Cede & Co., as nominee of
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the Securities Depository, and countersigned by the Paying Agent. The Company
will give the Auction Agent prior written notice and instruction as to the
issuance and redemption of AMPS.
4.2. Registration of Transfer or Exchange of Shares.
Except as provided in this Section 4.2, the shares of each series of
AMPS 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 Company shall not have selected a substitute
Securities Depository acceptable to the Paying Agent prior to such resignation,
then upon such resignation, the shares of each series of AMPS, at the Company's
request, may be registered for transfer or exchange, and new certificates
thereupon shall be issued in the name of the designated transferee or
transferees, upon surrender of the old certificate in form deemed by the Paying
Agent properly endorsed for transfer with (a) all necessary endorsers'
signatures guaranteed in such manner and form as the Paying Agent may require by
a guarantor reasonably believed by the Paying Agent to be responsible, (b) such
assurances as the Paying Agent shall deem necessary or appropriate to evidence
the genuineness and effectiveness of each necessary endorsement and (c)
satisfactory evidence of compliance with all applicable laws relating to the
collection of taxes in connection with any registration of transfer or exchange
or funds necessary for the payment of such taxes. If the certificate or
certificates for shares of AMPS are not held by the Securities Depository or its
nominee, payments upon transfer of shares in an Auction shall be made in Federal
Funds or similar same-day funds to the Auction Agent against delivery of
certificates therefor.
4.3. Removal of Legend.
Any request for removal of a legend indicating a restriction on
transfer from a certificate evidencing shares of AMPS shall be accompanied by an
opinion of counsel stating that such legend may be removed and such shares may
be transferred free of the restriction described in such legend, said opinion to
be delivered under cover of a letter from a Company Officer authorizing the
Paying Agent to remove the legend on the basis of said opinion.
4.4. Lost, Stolen or Destroyed Stock 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 Company
and by the Paying Agent, subject at all times to provisions of law, the By-Laws
of the Company governing such matters and resolutions adopted by the Company
with respect to lost, stolen or destroyed securities. The Paying Agent may issue
new certificates in exchange for and upon the cancellation of mutilated
certificates. Any request by the Company to the Paying Agent to issue a
replacement or new certificate pursuant to this Section 4.4 shall be deemed to
be a representation and warranty by the Company to the Paying Agent that such
issuance will comply with provisions of applicable law and the By-Laws and
resolutions of the Company.
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4.5. Disposition of Canceled Certificates; Record Retention.
The Paying Agent shall retain stock certificates which have been
canceled in transfer or in exchange and accompanying documentation in accordance
with applicable rules and regulations of the Securities and Exchange Commission
for two calendar years from the date of such cancellation. The Paying Agent,
upon written request by the Company, shall afford to the Company, its agents and
counsel access at reasonable times during normal business hours to review and
make extracts or copies (at the Company's sole cost and expense) of such
certificates and accompanying documentation. Upon request by the Company at any
time after the expiration of this two-year period, the Paying Agent shall
deliver to the Company the canceled certificates and accompanying documentation.
The Company, at its expense, shall retain such records for a minimum additional
period of four calendar years from the date of delivery of the records to the
Company and shall make such records available during this period at any time, or
from time to time, for reasonable periodic, special, or other examinations by
representatives of the Securities and Exchange Commission. The Company also
shall undertake to furnish to the Securities and Exchange Commission, upon
demand, either at their principal office or at any regional office, complete,
correct and current hard copies of any and all such records. Thereafter, such
records shall not be destroyed by the Company without the approval of the Paying
Agent, which approval shall not be withheld unreasonably, but will be safely
stored for possible future reference.
4.6. Stock Register.
The Paying Agent shall maintain the stock register, which shall contain
a list of the Holders, the number of shares held by each Holder and the address
of each Holder. The Paying Agent shall record in the stock register any change
of address of a Holder upon notice by such Holder. In case of any written
request or demand for the inspection of the stock register or any other books of
the Company in the possession of the Paying Agent, the Paying Agent will notify
the Company and secure instructions as to permitting or refusing such
inspection. The Paying Agent reserves the right, however, to exhibit the stock
register or other records 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 Company shall have offered indemnification satisfactory to the Paying
Agent.
4.7. Return of Funds.
Any funds deposited with the Paying Agent by the Company for any reason
under this Agreement, including for the payment of dividends or the redemption
of shares of any series of AMPS, that remain with the Paying Agent after 12
months shall be repaid to the Company upon written request by the Company.
V. REPRESENTATIONS AND WARRANTIES.
5.1. Representations and Warranties of the Company.
The Company represents and warrants to the Auction Agent that:
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(i) the Company is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland,
and has full power to execute and deliver this Agreement and to
authorize, create and issue the shares of AMPS;
(ii) the Company is registered with the Securities and
Exchange Commission under the Investment Company Act of 1940, as
amended, as a closed-end, non-diversified, management investment
company;
(iii) this Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes the legal, valid
and binding obligation of the Company, enforceable against the Company
in accordance with its terms, subject as to such enforceability to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equitable principles;
(iv) the forms of the certificates evidencing the shares of
each series of AMPS comply with all applicable laws of the State of
Maryland;
(v) the shares of each series of AMPS have been duly and
validly authorized by the Company and, upon completion of the initial
sale of the shares of such series of AMPS and receipt of payment
therefor, will be validly issued, fully paid and nonassessable;
(vi) at the time of the offering of the shares of each series
of AMPS, the shares offered will be registered under the Securities Act
of 1933, as amended, and no further action by or before any
governmental body or authority of the United States or of any state
thereof is required in connection with the execution and delivery of
this Agreement or will be required in connection with the issuance of
the shares of AMPS, except such action as required by applicable state
securities or insurance laws, all of which action will have been taken;
(vii) the execution and delivery of this Agreement and the
issuance and delivery of the shares of each series of AMPS do not and
will not conflict with, violate, or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, the Charter
or the By-Laws of the Company, any law or regulation applicable to the
Company, any order or decree of any court or public authority having
jurisdiction over the Company, or any mortgage, indenture, contract,
agreement or undertaking to which the Company is a party or by which it
is bound; and
(viii) no taxes are payable upon or in respect of the
execution of this Agreement or will be payable upon or in respect of
the issuance of the shares of each series of AMPS.
5.2. Representations and Warranties of the Auction Agent.
The Auction Agent represents and warrants to the Company that the
Auction Agent is duly organized and is validly existing as a banking corporation
in good standing under the laws of the State of New York, and has the corporate
power to enter into and perform its obligations under this Agreement.
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VI. THE AUCTION AGENT.
6.1. Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the
Company hereunder and owes no fiduciary duties to any Person except as
provided by this Agreement.
(b) The Auction Agent undertakes to perform such duties and
only such duties as are set forth specifically in this Agreement, and
no implied covenants or obligations shall be read into this Agreement
against the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the
Auction Agent shall not be liable for any action taken, suffered or
omitted by it or for any error of judgment made by it in the
performance of its duties under this Agreement. The Auction Agent shall
not be liable for any error of judgment made in good faith unless the
Auction Agent shall have been negligent in ascertaining (or failing to
ascertain) the pertinent facts.
6.2. Rights of the Auction Agent.
(a) The Auction Agent may rely upon, and shall be protected in
acting or refraining from acting upon, any communication authorized
hereby and any written instruction, notice, request, direction,
consent, report, certificate, share certificate or other instrument,
paper or document reasonably believed by it to be genuine. The Auction
Agent shall not be liable for acting upon any telephone communication
authorized hereby which the Auction Agent believes in good faith to
have been given by the Company or by a Broker-Dealer. The Auction Agent
may record telephone communications with the Company or with the
Broker-Dealers or with both.
(b) The Auction Agent may consult with counsel of its choice,
and the written 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 Auction Agent shall not be required to advance, expend
or risk its own funds or otherwise incur or become exposed to financial
liability in the performance of its duties hereunder. The Auction Agent
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
(d) The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys.
6.3. Auction Agent's Disclaimer.
The Auction Agent makes no representation as to the validity or the
adequacy of this Agreement, the Broker-Dealer Agreements or the AMPS.
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6.4. Compensation, Expenses and Indemnification.
(a) The Company shall pay to the Auction Agent from time to
time reasonable compensation for all services rendered by it under this
Agreement and under the Broker-Dealer Agreements as shall be set forth
in a separate writing signed by the Company and the Auction Agent,
subject to adjustments if the AMPS no longer are held of record by the
Securities Depository or its nominee or if there shall be such other
change as shall increase materially the Auction Agent's obligations
hereunder or under the Broker-Dealer Agreements.
(b) The Company shall reimburse the Auction Agent upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Auction Agent in accordance with any provision
of this Agreement and of the Broker-Dealer Agreements (including the
reasonable compensation, expenses and disbursements of its agents and
counsel), except any expense, disbursement or advance attributable to
its negligence or bad faith.
(c) The Company shall indemnify the Auction Agent for, and
hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part arising out of or in
connection with its agency under this Agreement and under the
Broker-Dealer Agreements, including the costs and expenses of defending
itself against any claim of liability in connection with its exercise
or performance of any of its duties hereunder and thereunder, except
such as may result from its negligence or bad faith.
VII. MISCELLANEOUS.
7.1. Term of Agreement.
(a) The term of this Agreement is unlimited unless it shall be
terminated as provided in this Section 7.1. The Company may terminate
this Agreement at any time by so notifying the Auction Agent, provided
that if any AMPS remain outstanding the Company shall have entered into
an agreement in substantially the form of this Agreement with a
successor auction agent. The Auction Agent may terminate this Agreement
upon prior notice to the Company on the date specified in such notice,
which date shall be no earlier than 60 days after delivery of such
notice. If the Auction Agent resigns while any shares of AMPS remain
outstanding, the Company shall use its best efforts to enter into an
agreement with a successor auction agent containing substantially the
same terms and conditions as this Agreement.
(b) Except as otherwise provided in this Section 7.1(b), the
respective rights and duties of the Company and the Auction Agent under
this Agreement shall cease upon termination of this Agreement. The
Company's representations, warranties, covenants and obligations to the
Auction Agent under Sections 5 and 6.4 hereof shall survive the
termination hereof. Upon termination of this Agreement, the Auction
Agent shall (i) resign as Auction Agent under the Broker-Dealer
Agreements, (ii) at the Company's request, deliver promptly to the
Company copies of all books and records maintained by it in connection
with its duties hereunder, and (iii) at the request of the Company,
transfer
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promptly to the Company or to any successor auction agent any funds
deposited by the Company with the Auction Agent (whether in its
capacity as Auction Agent or as Paying Agent) pursuant to this
Agreement which have not been distributed previously by the Auction
Agent in accordance with this Agreement.
7.2. Communications.
Except for (i) communications authorized to be made by telephone
pursuant to this Agreement or the Auction Procedures and (ii) communications in
connection with Auctions (other than those expressly required to be in writing),
all notices, requests and other communications to any party hereunder shall be
in writing (including telecopy or similar writing) and shall be given to such
party at its address or telecopier number set forth below:
If to the Company, ___________________________
addressed to: 000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasurer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Auction IBJ Whitehall Bank & Trust Company
Agent, addressed to: Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Window Subcellar 1
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
or such other address or telecopier number as such party hereafter may specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Company by a Company Officer and
on behalf of the Auction Agent by an Authorized Officer.
7.3. 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 inferred,
between the parties relating to the subject matter hereof, except for agreements
relating to the compensation of the Auction Agent.
7.4. Benefits.
Nothing herein, express or implied, shall give to any Person, other
than the Company, the Auction Agent and their respective successors and assigns,
any benefit of any legal or equitable right, remedy or claim hereunder.
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7.5. Amendment; Waiver.
(a) 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 the party to be charged. The Company shall notify the
Auction Agent of any change in the Articles Supplementary prior to the
effective date of any such change. If any such change in the Articles
Supplementary materially increases the Auction Agent's obligations
hereunder, the Company shall obtain the written consent to the Auction
Agent prior to the effective date of such change.
(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 right or remedy with respect
to any subsequent breach.
7.6. Successors and Assigns.
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and permitted assigns of each of the
Company and the Auction Agent. This Agreement may not be assigned by either
party hereto absent the prior written consent of the other party, which consent
shall not be withheld unreasonably.
7.7. 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.
7.8. Execution in Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
7.9. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State.
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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.
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By:
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Name:
Title:
IBJ WHITEHALL BANK & TRUST COMPANY
By:
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Name:
Title:
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