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EXHIBIT 2(k)(2)
AMENDED AND RESTATED AGENCY AGREEMENT
AMENDED AND RESTATED AGENCY AGREEMENT dated as of
November __, 1999 between XXXXXX MUNICIPAL INCOME TRUST, a Massachusetts
business trust (the "Company"), and DEUTSCHE BANK a New York banking corporation
(the "Agent").
The Company has issued 43,000 shares, designated as
Series A - D, and proposes to issue 10,000 shares, designated as Series E, of
preferred shares, pursuant to its Declaration of Trust (as defined below) and
Certificate of Designation (as defined below). The Company desires that the
Agent perform certain duties in connection with the Shares (as defined below)
upon the terms and conditions of this Agreement, and hereby appoints the Agent
to act in the capacities set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and
the mutual covenants contained herein, the Company and the Agent
agree as follows:
1. Purpose; Definitions and Rules of Construction.
1.1. Purpose.
The Board of Trustees of the Company has adopted a
resolution appointing the Agent as transfer agent, registrar, paying agent and
agent for certain notifications for the Company in connection with the Shares.
The Agent accepts such appointment and agrees to act in accordance with its
standard procedures as Agent with respect to the Shares as set forth in this
Agreement.
1.2. Terms Defined by Reference
to Certificate of Designation.
Capitalized terms not defined herein shall have the
respective meanings specified in the Certificate of Designation.
1.3. Terms Defined Herein.
As used herein, the following terms shall have the
following meanings, unless the context otherwise requires:
(a) "Agent Member" of any Person shall mean such person's
agent member of the Securities Depository.
(b) "Authorized Officer" shall mean 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, each Assistant Treasurer, and every other
officer or employee of the Agent designated as an "Authorized
Officer" for purposes hereof in a notice to the Company.
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(c) "Beneficial Owner" shall mean a person who is listed as
a beneficial owner of Shares in the records of the Agent.
(d) "Certificate of Designation" shall mean the Company's
Amended and Restated Certificate of Designation For Preferred Shares,
a copy of which is attached hereto as Exhibit B.
(e) "Company Officer" shall mean the Chairman of the Board
of Trustees, 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, each Assistant Treasurer, and every other officer or
employee of the Company designated as a "Company Officer" for
purposes hereof in a notice to the Agent.
(f) "Declaration of Trust" shall mean the Company's Amended
and Restated Agreement and Declaration of Trust, a copy of which is
attached hereto as Exhibit A.
(g) "Holder" shall mean the holder of Shares as its name
appears on the stock transfer books or record books of the Company,
which, except as set forth in Section 4.3 hereof, is the Securities
Depository.
(h) "Shares" shall mean the Company's preferred shares,
designated as Series A, B, C, D and E.
1.4. 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.
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2. Redemption of Shares.
2.1. Notice of Redemption; Other
Redemption Procedures.
(a) The Company will give to the Agent written notice (a
"Notice of Redemption") of any full or partial redemption no later
than 12:00 noon on the Business Day immediately preceding the tenth
calendar day preceding the redemption date.
(b) The Agent shall provide telephonic notice to the
Securities Depository and the Remarketing Agent by the close of
business on the day on which the Agent receives any Notice of
Redemption pursuant to clause (a) above and, in the event of a
partial redemption of Shares, the Agent shall provide a
hand-delivered copy of such Notice of Redemption to the Securities
Depository marked "TIME CRITICAL" and shall include a copy addressed
to Vice President, Reorganization Department. Such notice shall
specify the aggregate number of Shares to be redeemed and the number
of Shares from each series, identified by CUSIP number. The Agent
shall request in such Notice of Redemption a copy of the results of
the lottery to be held in accordance with subsection (f) hereof.
(c) In the case of any partial redemption of Shares, the
Agent will use its reasonable efforts to provide telephonic notice to
the Remarketing Agent not later than the close of business on the day
on which the Agent receives the notice of the results of the lottery
conducted by the Securities Depository pursuant to clause (f) below.
The Agent will use its reasonable efforts to provide telephonic
notice to each Beneficial Owner of Shares (whose telephone number has
been provided to the Agent by the Remarketing Agent or the
broker-dealers) selected for redemption not later than the close of
business on the Business Day following the day on which such
telephonic notice is given to the Remarketing Agent as provided in
the immediately preceding sentence. Such telephonic notice shall be
confirmed in writing by a Notice of Redemption sent by the Agent to
the Remarketing Agent, the Securities Depository and each Beneficial
Owner of Shares called for redemption not later than the close of
business on such date.
(d) In the case of a redemption in whole of Shares, the
Agent will use its reasonable efforts to provide telephonic notice to
each Beneficial Owner of Shares not later than the close of business
on the Business Day immediately following the day on which the Agent
receives a Notice of Redemption pursuant to clause (a)(ii) above.
Such telephonic notice shall be confirmed in writing by sending a
photocopy of the Notice of Redemption sent by the Company to the
Agent to each of the Securities Depository, the Remarketing Agent and
each Beneficial Owner not later than the close of business on such
date.
(e) Every Notice of Redemption sent by the Company to the
Agent and by the Agent to Beneficial Owners, whether mandatory or
optional and whether partial or in whole, shall state: (i) the
redemption date; (ii) the number of Shares to be redeemed;
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(iii) the redemption price; (iv) the place or places where the Shares
are to be redeemed; (v) that dividends on the Shares to be redeemed
will cease to accrue on such redemption date; (vi) the provision of
the Certificate of Designation under which the redemption is to be
made and (vii) the date Such Notice of Redemption is to be mailed to
Shareholders or published.
(f) If fewer than all the outstanding Shares are to be
redeemed pursuant to the Certificate of Designation, the number of
Shares and series of such Shares to be redeemed shall be determined
by the Company and the Company shall notify the Agent by telephone
and in writing. Upon receipt of the Notice of Redemption, the Agent
shall notify the Securities Depository of such redemption, as
provided in clause (b) above, which notice shall include, with
respect to the Shares, the aggregate number of Shares to be redeemed
and the number of such Shares to be redeemed from each series. The
Securities Depository will determine by lot the number of Shares from
each series to be redeemed from the account of each Agent Member and
will notify the Agent of the results of such lottery by 10:00 a.m. on
the second Business Day following the date on which the Securities
Depository receives the notice referred to in the immediately
preceding sentence. Upon receipt of such notice from the Securities
Depository, the Agent shall in turn select by lot the number of
Shares from each series to be redeemed from the accounts of the
Beneficial Owners of the Shares whose Agent Members have been
selected.
3. The Agent as Paying Agent and
Agent for Certain Notifications.
3.1. Dividend Rates.
The Company shall deliver to the Agent a copy of each
Certificate of Determination. The Agent will, in turn, notify the Securities
Depository of the applicable Dividend Rate as soon thereafter as practicable.
3.2. The Agent as Paying Agent.
The Agent will pay (i) to the Holder on the Dividend
Payment Date for each Share (or, in the case of dividends in arrears, at any
time as may be fixed by the Company), dividends on such Share, (ii) to the
Holder, on any date fixed for redemption of any Shares, the redemption price of
the Shares, inclusive of an amount equal to accumulated and unpaid dividends on
Shares called for redemption upon presentation and surrender of the certificate
or certificates evidencing such Shares held by such Holder and called for
redemption, in each case after receipt of the necessary funds from the Company
with which to pay such dividends or redemption price. The Company shall cause to
be delivered to the Agent sufficient next-day funds to pay any such dividends or
redemption price not later than noon on the Business Day immediately preceding
such Dividend Payment Date or date fixed for redemption. The Agent shall have no
duty to determine the redemption price or dividend rate of Shares and may rely
on the amount thereof set forth in the Notice of Redemption or Certificate of
Determination, as the
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case may be. On the Business Day immediately succeeding each Dividend
Payment Date and date fixed for redemption of Shares, the Agent shall promptly
transmit to the Company, after the Dividend Payment Date, or date fixed for
redemption of Shares, any cash held by the Agent in excess of the aggregate
amount of dividends or redemption price of the Shares called for redemption on
such date, paid on such date.
3.3. Certificated Shares.
In the event the Company determines that Beneficial
Owners of Shares shall be able to obtain certificated Shares, the Company shall
notify the Agent and the Agent shall notify the Securities Depository of the
availability of share certificates. The Company or the Agent shall then issue,
transfer and exchange Share certificates as required by the Securities
Depository in appropriate amounts.
4. The Agent as Transfer Agent and Registrar.
4.1. Original Issue of Stock Certificates.
On the Date of Original Issue for each series of Shares, definitive
certificates which together represent 53,000 Shares, were issued, for Series
A-D, and will be issued, for Series E, issued by the Company. All Shares, at the
request of the Company, have been or shall be registered in the name of Cede &
Co. and countersigned by the Agent.
4.2. Maintenance of Registry of Beneficial
Owners; Allocation of Shares.
(a) The Agent shall maintain a registry including the
names, addresses and respective ownership interests of the Beneficial
Owners of the Shares for purposes of Remarketings. By 10:30 a.m. on
the last Business Day of each Dividend Period, the Agent shall
deliver a copy of such registry to the Remarketing Agent. The Company
shall cause the Remarketing Agent to provide the Agent with a list of
the initial Beneficial Owners of the Shares. The Agent may rely upon,
as evidence of the identities of the Beneficial Owners, such list;
the results of Remarketings reported to the Agent by the Remarketing
Agent; and notice from the Remarketing Agent or a broker-dealer with
respect to such Beneficial Owner's transfer of Shares to another
Person other than through a Remarketing. The Agent and the Company
shall keep confidential any such information provided by or obtained
from the Remarketing Agent or a broker-dealer and, unless otherwise
required by law, shall not disclose any such information so provided
or obtained to any Person other than the Company, the Agent and, with
respect to the information provided by the Remarketing Agent or a
broker-dealer, the Remarketing Agent or such broker-dealer, as the
case may be.
(b) The Agent shall register a transfer of Shares from a
Beneficial Owner to another person only if the Agent has been
notified by the Remarketing Agent that such
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transfer is pursuant to a Remarketing or the Agent has been notified
in writing by the Remarketing Agent or a broker-dealer of such
transfer outside of a Remarketing.
4.3. Registration of Transfer of Shares.
Except as set forth in this Section 4.3, Shares shall
be registered solely in the name of the Securities Depository or its nominee. If
the Securities Depository shall give notice of its intention to resign as such,
and if the Company shall not have selected a substitute Securities Depository
reasonably acceptable to the Agent prior to such resignation, then upon such
resignation, the Shares shall be registered for transfer or exchange, and new
certificates shall be issued, in the name of the designated transferee or
transferees, upon surrender of the old certificates in form deemed by the Agent
properly endorsed for transfer with (a) all necessary endorsers' signatures
guaranteed in such manner and form as the Agent may require by a guarantor
reasonably believed by the Agent to be reasonable, (b) such assurances as the
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 or funds
necessary for the payment of such taxes.
4.4. Removal of Legend.
All requests for removal of legends indicating
restrictions on transfer from certificates evidencing Shares shall be
accompanied by an opinion of counsel stating that such legends may be removed
and such shares freely transferred, said opinion to be delivered under cover of
a letter from a Company Officer authorizing the Agent to remove the legend on
the basis of said opinion.
4.5. Lost Stock Certificates.
The 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 the Agent, subject at all times to provisions of
law, the Bylaws of the Company governing such matters and resolutions adopted by
the Company with respect to lost securities. The Agent may issue new
certificates in exchange for and upon the cancellation of mutilated
certificates. Any request by the Company to the Agent to issue a replacement or
new certificate pursuant to this Section 4.5 shall be deemed to be a
representation and warranty by the Company to the Agent that such issuance will
comply with such provisions of law and Bylaws and resolutions of the Company.
4.6. Disposition of Cancelled Stock Certificates; Record
Retention.
The Agent shall retain stock certificates that have
been cancelled 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 Agent
shall afford to the Company, its agents and counsel access at reasonable times
during the normal business hours of the Agent to review and make extracts or
copies of
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such certificates and accompanying documentation. Upon the expiration of this
two-year period, the Agent shall deliver to the Company the cancelled
certificates and accompanying documentation. The Company shall, at its expense,
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 the Agent or its representatives,
representatives of the Securities and Exchange Commission and the Board of
Governors of the Federal Reserve System. The Company shall also undertake to
furnish to the Securities and Exchange Commission and to the Board of Governors
of the Federal Reserve System, upon demand, at either the 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 concurrence of the Agent, which shall not be unreasonably withheld, but
will be safely stored for possible future reference.
4.7. Transfer Books.
The Agent shall maintain the transfer books listing
the Holders of the Shares. In case of any written request or demand for the
inspection of the transfer books of the Company or any other books in the
possession of the Agent, the Agent will notify the Company and secure
instructions as to permitting or refusing such inspection. The Agent reserves
the right, however, to exhibit the transfer books or other books to any person
if it is advised by its counsel that its failure to do so would be unlawful.
4.8. Return of Funds.
Any funds (including any interest earned thereon)
deposited with the Agent by the Company for any reason under this Agreement,
including for the payment of dividends or the redemption of Shares, that remain
with the Agent 30 calendar days from the date of such deposit shall promptly be
repaid to the Company by the Agent, provided that no amounts due under the terms
of this Agreement are outstanding.
5. Representations and Warranties.
(a) The Company represents and warrants as follows:
(i) The Company is a Massachusetts business trust
duly organized and validly existing in good standing under
the laws of the Commonwealth of Massachusetts and has the
power to execute and deliver this Agreement and to carry
out its obligations hereunder.
(ii) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes a
legal, valid and binding obligation of the Company.
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(iii) The Shares have been duly authorized and
validly issued and are fully paid and non-assessable.
(iv) The execution and delivery of this
Agreement, and the fulfillment of and compliance with the
terms and provisions hereof, 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,
or result in the creation of any lien upon any of the
properties or assets of the Company pursuant to, the
Declaration of Trust, the Certificate of Designation or the
Bylaws of the Company.
(b) The Agent represents and warrants to the Company that
the Agent is duly organized and is validly existing as a banking
corporation in good standing under the laws of the State of New York,
the Agent has the corporate power to enter into and perform its
obligations under this Agreement, and this Agreement has been duly
authorized, executed and delivered by the Agent and constitutes a
legal, valid and binding obligation of the Agent.
6. The Agent.
6.1. Duties and Responsibilities.
(a) The Agent is not a trustee and is acting solely as
agent for the Company hereunder and owes no fiduciary duties to any
other person by reason of this Agreement.
(b) The Agent undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement, and no
implied covenants or obligations shall be read into this Agreement
against the Agent.
(c) In the absence of negligence or willful misconduct on
its part, the Agent shall not be liable for any action taken,
suffered or omitted or for any error of judgment made by it in the
performance of its duties under this Agreement. The Agent shall not
be liable for any error of judgment made in good faith unless the
Agent shall have been negligent in ascertaining or failing to
ascertain the pertinent facts.
6.2. Rights of the Agent.
(a) The Agent may rely and shall be protected in acting or
refraining from acting upon any communication authorized hereby and
upon any written instruction, notice, request, direction, consent,
report, certificate, shares certificate or other instrument, paper or
document believed by it in good faith to be genuine. The Agent shall
not be liable for acting upon any telephone communication authorized
hereby which the Agent believes in good faith to have been given by
the Company, a Holder, an Agent Member or the Remarketing Agent. The
Agent may record telephone communications with the Company and the
Remarketing Agent.
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(b) The Agent may consult with counsel, and the advice of
such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(c) The Agent shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to financial
liability in the performance of its duties hereunder.
(d) The Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or
attorneys.
6.3. Agent's Disclaimer.
The Agent makes no representation as to the validity
or adequacy of the Shares.
6.4. Compensation, Expenses, and Indemnification.
(a) The Company shall pay to the Agent from time to time
compensation to be mutually agreed upon for all services rendered by
the Agent under this Agreement.
(b) The Company shall reimburse the Agent upon the Agent's
request for all reasonable expenses, disbursements and advances
incurred or made by the Agent in accordance with any provision of
this Agreement (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any
expense or disbursement attributable to its negligence or willful
misconduct.
(c) The Company shall indemnify the Agent for and hold the
Agent harmless against any loss, liability or expense incurred
without negligence or willful misconduct on the Agent's part, arising
out of or in connection with its agency under this Agreement,
including the costs and expenses, including reasonable attorneys'
fees, of defending itself against any claim or liability in
connection with its exercise or performance of any of its duties
hereunder.
7. 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 Agent and
the Remarketing Agent, provided that, so long as any Shares are
outstanding, the Company shall have entered into an agreement with a
successor Agent. The Agent may terminate this Agreement upon notice
to the Company and the Remarketing Agent on the date specified in
such notice, which shall be no earlier than 30 days after the date of
delivery of such notice.
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(b) Except as otherwise provided in this paragraph (b), the
respective rights and duties of the Company and the Agent under this
Agreement shall cease upon termination of this Agreement. The
Company's representations, warranties, covenants and obligations to
the Agent under Sections 5(a) and 6.4 hereof shall survive the
termination hereof but only with respect to events which occur prior
to the effective date of the termination. Upon termination of this
Agreement, the Agent shall (i) promptly deliver to the Company copies
of all books and records maintained by it in connection with its
duties hereunder and (ii) at the request of the Company, promptly
transfer to the Company or any successor Agent any funds held for the
Company which have not previously been distributed by the Agent in
accordance with this Agreement.
7.2. Communications.
Except for communications authorized to be by
telephone pursuant to this Agreement, all notices, requests and other
communications to any party hereunder shall be in writing (including telecopy or
similar writing) given to such person at its address or telecopy number set
forth below:
If to the Company,
addressed: XXXXXX MUNICIPAL INCOME FUND
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mutual Fund Accounting
Telephone No.: (000) 000-0000
If to the Agent,
addressed: DEUTSCHE BANK
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Rate -
Remarketed Securities
Telephone No.: (212) 250-_____
Telecopier No.: (212) 250-_____
If to the Remarketing Agent,
addressed: Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Short-Term Preferred-
Sales and Trading -
Telephone No.: (212) 698-_____
Telecopier No.: (212) 262-_____
(212) 247-_____
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If to the Securities
Depository, addressed: The Depository Trust Company
00 Xxxxx Xxxxxx
In connection Xxx Xxxx, Xxx Xxxx 00000
with dividends: Attention: Manager, Cash Receipts Section
Dividend Department
Telephone No.: (212) 855-_____
In connection Telecopier No.: (212) 855-_____
with redemption Attention: Manager, Reorganization
Department
Telephone No.: (212) 855-_____
Telecopier No.: (212) 855-_____
or to such other address as the party to whom the communication is addressed
shall have previously communicated to the other party. Communications shall be
effective when received at the proper address.
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.
7.4. Benefits.
Nothing herein, express or implied, shall give to any
Person, other than the Company, the Agent and their respective successors and
assigns, any benefit of any legal or equitable right, remedy or claim hereunder.
7.5. Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in
part, except by a written instrument signed by a duly authorized
representative of each party.
(b) Failure of either party hereto to exercise any right or
remedy hereunder in the event of a breach hereof by the other party
shall not constitute a waiver of any such rights or remedies with
respect to any subsequent breach.
7.6. Successors and Assigns.
This Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the respective successors and assigns of each
of the Company and the Agent. Without the
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prior written consent of the Company, such consent not to be unreasonably
withheld, the Agent may not assign this Agreement, either directly or by
operation of law.
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.
7.10. Limitation of Liability.
A copy of the Declaration of Trust of the Company is
on file with the Secretary of the Commonwealth of Massachusetts, and it is
hereby agreed that this Agreement is executed on behalf of the trustees of the
Company as trustees and not individually and that the obligations of this
Agreement are not binding upon any of the trustees, officers or shareholders of
the Company individually but are binding only upon the assets and property of
the Company.
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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.
XXXXXX MUNICIPAL INCOME TRUST
By:
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Name:
Title:
DEUTSCHE BANK
By:
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Name:
Title:
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