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AUCTION AGENCY AGREEMENT
between
VAN XXXXXX XXXXXXX TRUST
FOR INVESTMENT GRADE FLORIDA MUNICIPALS
and
BANKERS TRUST COMPANY
Dated as of June 10, 1992
Relating to
Auction Preferred Shares
of
VAN XXXXXX XXXXXXX TRUST FOR
INVESTMENT GRADE FLORIDA MUNICIPALS
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TABLE OF CONTENTS
PAGE
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SECTION 1 DEFINITIONS AND RULES OF CONSTRUCTION ...................... 1
1.1 Terms Defined by Reference to
APS Provisions ...................................... 1
1.2 Terms Defined Herein ................................. 1
1.3 Rules of Construction ................................ 3
SECTION 2 THE AUCTION ................................................ 3
2.1 Purpose; Incorporation by Reference of Auction
Procedures and Settlement Procedures ................ 3
2.2 Preparation of Each Auction; Maintenance of
Registry of Beneficial Owners ....................... 4
2.3 Information Concerning Rates ......................... 7
2.4 Auction Schedule ..................................... 11
2.5 Designation of Special Dividend Period ............... 12
2.6 Allocation of Taxable Income ......................... 14
2.7 Failure to Deposit ................................... 14
2.8 Broker-Dealers ....................................... 17
2.9 Ownership of APS ..................................... 17
2.10 Access to and Maintenance of
Auction Records ..................................... 18
2.11 Dividend and Redemption Price Deposit ............... 18
SECTION 3 THE AUCTION AGENT AS DIVIDEND
AND REDEMPTION PRICE DISBURSING AGENT ..................... 18
SECTION 4 THE AUCTION AGENT AS TRANSFER AGENT
AND REGISTRAR ............................................. 19
4.1 Issue of Share Certificates .......................... 19
PAGE
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4.2 Registration of Transfer of Shares ................... 19
4.3 Removal of Legend on Restricted Shares ............... 19
4.4 Lost Share Certificates .............................. 19
4.5 Disposition of Cancelled
Certificates; Record Retention ...................... 20
4.6 Share Transfer Books ................................. 20
4.7 Return of Funds ...................................... 20
SECTION 5 REPRESENTATIONS AND WARRANTIES OF THE FUND ................. 21
SECTION 6 THE AUCTION AGENT .......................................... 22
6.1 Duties and Responsibilities .......................... 22
6.2 Rights of the Auction Agent .......................... 23
6.3 Auction Agent's Disclaimer ........................... 23
6.4 Compensation, Expenses and
Indemnification ..................................... 23
SECTION 7 MISCELLANEOUS .............................................. 24
7.1 Term of Agreement .................................... 24
7.2 Communications ....................................... 25
7.3 Entire Agreement ..................................... 26
7.4 Benefits ............................................. 26
7.5 Amendment; Waiver .................................... 26
7.6 Successors and Assigns ............................... 26
7.7 Limitation of Liability .............................. 26
2
PAGE
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7.8 Severability ......................................... 27
7.9 Execution in Counterparts ............................ 27
7.10 Governing Law ........................................ 27
3
AUCTION AGENCY AGREEMENT dated as of June 10, 1992 between VAN
XXXXXX XXXXXXX TRUST FOR INVESTMENT GRADE FLORIDA MUNICIPALS, a Massachusetts
business trust (the "Fund"), and Bankers Trust Company, a New York banking
corporation (the "Auction Agent").
WHEREAS, the Fund proposes to issue preferred shares of beneficial
interest, par value $.0l per share, liquidation preference $50,000 per share,
designated Auction Preferred Shares (the "APS") pursuant to the APS Provisions
(as hereinafter defined) and desires that the Auction Agent perform certain
duties in connection with the APS upon the terms and subject to the conditions
of this Agreement, and hereby appoints the Auction 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 Fund and the Auction Agent agree as follows:
1. Definitions and Rules of Construction.
1.1 Terms Defined by Reference to APS Provisions. Capitalized terms
not defined herein shall have the respective meanings specified in the APS
Provisions.
1.2 Terms Defined Herein. As used herein and in the Settlement
Procedures, the following terms shall have the following meanings, unless the
context otherwise requires:
(a) "Agent Member" of any Person shall mean the member of, or
participant in, the Securities Depository that will act on behalf of a Bidder
and is identified as such in such Bidder's Master Purchaser's Letter.
(b) "APS Provisions" shall mean the Certificate of Vote of the
Fund's Board of Trustees establishing the APS pursuant to the Declaration of
Trust of the Fund and attached hereto as Exhibit D.
(c) "Auction" shall have the meaning specified in Section 2.1
hereof.
(d) "Auction Procedures" shall mean the auction procedures
constituting Part II of the form of APS Provisions.
(e) "Authorized Officer" shall mean each Senior Vice
President, Vice President, Assistant Vice President, Assistant Treasurer and
Assistant Secretary of the Auction Agent and every other officer or employee of
the Auction Agent designated as an "Authorized Officer" for purposes hereof in a
communication to the Fund.
(f) "Broker-Dealer" shall mean any broker-dealer, commercial
bank or other entity permitted by law to perform the functions of a
Broker-Dealer that is a member of, or a participant in, the Securities
Depository or is an affiliate of such member or participant has been selected by
the Fund and has entered into a Broker-Dealer Agreement that remains effective.
(g) "Broker-Dealer Agreement" shall mean each agreement among
the Fund, the Auction Agent and a Broker-Dealer substantially in the form
attached hereto as Exhibit A.
(h) "Existing Holder," when used with respect to any of the
APS, shall mean a Person who has signed a Master Purchaser's Letter and is
listed as the beneficial owner of such APS in the records of the Auction Agent.
(i) "Fund Officer" shall mean the Chairman of the Board of
Trustees of the Fund, 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 Fund and every other officer or employee of the Fund
designated as a "Fund Officer" for purposes hereof in a notice to the Auction
Agent.
(j) "Master Purchaser's Letter" shall mean a letter addressed
to the Fund, the Auction Agent, a Broker-Dealer and an Agent Member,
substantially in the form attached hereto as Exhibit B.
(k) "Potential Holder," when used with respect to any of the
APS, shall mean any Person, including any Existing Holder of such APS, (i) who
shall have executed a Master Purchaser's Letter and (ii) who may be interested
in acquiring such APS (or, in the case of an Existing Holder of such APS,
additional APS).
2
(1) "Settlement Procedures" shall mean the Settlement
Procedures attached hereto as Exhibit C.
(m) "Underwriters" shall mean Xxxxx Xxxxxx, Xxxxxx Xxxxx & Co.
Incorporated, Xxxxxxx, Sachs & Co., Prudential Securities Incorporated, X.X.
Xxxxxxx & Sons, Inc., Xxxxxxxxxxx & Co., Inc. and BT Securities Corporation and
any other person named as an underwriter of the APS in the Underwriting
Agreement or any schedule thereto.
(n) "Underwriting Agreement" shall mean the Underwriting
Agreement dated June 5, 1992 among the Fund and the Underwriters.
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.
2. The Auction.
2.1 Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures. (a) The APS Provisions provide that the Applicable Rate
per annum for the APS for each Subsequent Dividend Period after the Initial
Dividend Period with respect to the APS shall, except under certain conditions,
be equal to the rate per annum that a bank or trust company appointed by the
Fund advises has resulted on the Business Day preceding the first day of such
Subsequent Dividend Period from implementation of the Auction Procedures for
such APS. Each periodic implementation of the Auction Procedures is
3
hereinafter referred to as an "Auction." The Board of Trustees has adopted a
resolution appointing Bankers Trust Company as Auction Agent for purposes of the
Auction Procedures for the APS. The Auction Agent accepts such appointment and
agrees to follow the procedures set forth in this Section 2 and the Auction
Procedures for the purpose of determining the Applicable Rate for the APS for
each Subsequent Dividend Period thereof for which the Applicable Rate is to be
determined by an Auction.
(b) All of the provisions contained in the Auction Procedures
and 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 fully set forth herein.
2.2 Preparation of Each Auction; Maintenance of Registry of
Beneficial Owners. (a) Not later than seven days prior to the first Auction Date
for the APS, the Fund shall provide the Auction Agent with a list of the
Broker-Dealers and a manually signed copy of each Broker-Dealer Agreement for
execution by the Auction Agent. Not later than seven days prior to any Auction
Date for any of the APS for which any change in such list of Broker-Dealers is
to be effective, the Fund will notify the Auction Agent in writing of such
change and, if any such change involves the addition of a Broker-Dealer to such
list, shall cause to be delivered to the Auction Agent for execution by the
Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer; provided,
however, that if the Fund proposes to designate any Special Dividend Period of
any of the APS pursuant to Section 4 of Part I of the APS Provisions, not later
than 11:00 A.M., New York City time, on the Business Day next preceding the
Auction next preceding the first day of such Special Dividend Period, the Fund
shall provide the Auction Agent with a list of the Broker-Dealers for such APS
and a manually signed copy of each Broker-Dealer Agreement or a new Schedule A
to the Broker-Dealer Agreement (which Schedule A shall replace and supersede any
previous Schedule A to such Broker-Dealer Agreement) with each Broker-Dealer for
such APS. The Auction Agent and the Fund shall have entered into a Broker-Dealer
Agreement with each Broker-Dealer prior to the participation of any such
Broker-Dealer in any Auction.
4
(b) In the event that any Auction Date for any of the APS
shall be changed after the Auction Agent shall have given the notice referred to
in clause (vi) of paragraph (a) of the Settlement Procedures, or after the
notice referred to in Section 2.5(a) hereof, if applicable, the Auction Agent,
by such means as the Auction Agent deems practicable, shall give notice of such
change to the Broker-Dealers for such APS 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) (i) The Auction Agent shall maintain a registry of the
beneficial owners of the APS who shall constitute Existing Holders
of such APS for purposes of Auctions and shall indicate thereon the
identity of the respective Broker-Dealer of each Existing Holder, if
any, on whose behalf such Broker-Dealer submitted the most recent
Order in any Auction which resulted in such Existing Holder
continuing to hold or purchasing such APS. The Auction Agent shall
keep such registry current and accurate. The Fund shall provide or
cause to be provided to the Auction Agent at or prior to the Date of
Original Issue of the APS a list of the initial Existing Holders of
the APS, the number of APS purchased by each such Existing Holder
and the respective Broker-Dealer of each such Existing Holder or
the affiliate thereof through which each such Existing Holder
purchased such APS. The Auction Agent shall advise the Fund in
writing whenever the number of Existing Holders is 500 or more. The
Auction Agent may rely upon, as conclusive evidence of the
identities of the Existing Holders of any of the APS, (A) such list,
(B) the results of Auctions and (C) notices from any Existing
Holder, the Agent Member of any Existing Holder or the Broker-Dealer
of any Existing Holder as described in the first sentence of Section
2.2(c)(iii) hereof.
(ii) In the event of any partial redemption of any of
the APS, the Auction Agent shall, at least two Business Days prior
to the next Auction for such APS, request the Agent Member of each
Existing Holder of such APS to disclose to the Auction Agent (upon
5
selection by such Agent Member of the Existing Holders whose APS are to be
redeemed) the number of APS, if any, of such Existing Holder which are subject
to such redemption, provided the Auction Agent has been furnished with the name
and telephone number of a person or department at such Agent Member from which
it shall request such information. Upon any refusal of an Agent Member to
release such information, the Auction Agent shall deliver to such Agent Member a
facsimile copy of the Existing Holder's Master Purchaser's Letter, which
authorizes and instructs such Agent Member to release such information to the
Auction Agent. 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 the beneficial owner
of the number of APS shown in the Auction Agent's registry.
(iii) The Auction Agent shall be required to register a
transfer of APS from an Existing Holder of such APS to another Person only if
such transfer is made to a Person that has delivered, or on whose behalf has
been delivered, a signed Master Purchaser's Letter to the Auction Agent and if
(A) such transfer is pursuant to an Auction or (B) the Auction Agent has been
notified in writing (I) in a notice substantially in the form of Exhibit D to
the Broker-Dealer Agreements by such Existing Holder, the Agent Member of such
Existing Holder or the , of such Existing Holder of such transfer or (II) in a
notice substantially in the form of Exhibit E to the Broker-Dealer Agreements by
the Broker-Dealer of any Person that purchased or sold such APS in an Auction
of the failure of such APS to be transferred as a result of such Auction. The
Auction Agent is not required to accept any such notice for an Auction unless it
is received by the Auction Agent by 3:00 P.M. on the Business Day preceding such
Auction.
6
(iv) The Auction Agent is not required to accept the
Master Purchaser's Letter of any Potential Holder who wishes to
submit a Bid for the first time in an Auction or of any Potential
Holder or Existing Holder who wishes to amend its Master Purchaser's
Letter unless such letter or amendment is received by the Auction
Agent by 3:00 P.M. on the Business Day preceding such Auction.
(d) The Auction Agent may request the Broker-Dealers, as set
forth in the Broker-Dealer Agreements, to provide the Auction Agent with a list
of their respective customers that such Broker-Dealers believe are Existing
Holders of APS. The Auction Agent shall keep confidential such registry of
Existing Holders and shall not disclose the identities of the Existing Holders
of such APS to any Person other than the Fund and the Broker-Dealer that
provided such information.
2.3 Information Concerning Rates. (a) The Applicable Percentage on
the date of this Agreement for APS is 110%. If there is any change in the credit
rating of APS by either of the rating agencies (or substitute or successor
rating agencies) referred to in the definition of "Applicable Percentage"
resulting in any change in the Applicable Percentage for APS after the date of
this Agreement, the Fund shall notify the Auction Agent in writing of such
change in the Applicable Percentage prior to 12:00 Noon on the Business Day
prior to the next Auction Date for the APS succeeding such change. If the Fund
designates all or a portion of any dividend on the APS to consist of net capital
gains or other income taxable for federal income tax purposes, it will indicate,
in its notice in the form of Exhibit K hereto to the Auction Agent pursuant to
Section 2.6 hereof, the Applicable Percentage for such APS to be in effect for
the Auction Date on which the dividend rate for such dividend is to be fixed. In
determining the Maximum Rate for the APS on any Auction Date as set forth in
Section 2.3(b)(i) hereof, the Auction Agent shall be entitled to rely on the
last Applicable Percentage for APS of which it has most recently received notice
from the Fund (or, in the absence of such notice, the percentage set forth in
the first sentence of this paragraph (a)), except that if the Fund shall have
notified the Auction Agent of an Applicable Percentage to be in effect for an
Auction Date in accordance with the preceding sentence, the Applicable
7
Percentage in effect for the next succeeding Auction Date of the APS shall be,
unless the Fund notifies the Auction Agent of a change in the Applicable
Percentage for such succeeding Auction Date pursuant to this Section 2.3(a), the
Applicable Percentage that was in effect on the first preceding Auction Date for
APS with respect to which the dividend, the rate for which was fixed on such
Auction Date, did not include any net capital gains or other income taxable for
federal income tax purposes.
(b) (i) On each Auction Date for the APS, the Auction Agent shall
determine the Maximum Rate for such APS. The Maximum Rate for the APS on
any Auction Date shall be:
(A) in the case of any Auction Date which is not the
Auction Date immediately prior to the first day of any proposed
Special Dividend Period designated by the Fund pursuant to Section 4
of Part I of the APS Provisions, the product of (1) the "AA"
Composite Commercial Paper Rate on such Auction Date for the next
Rate Period of such APS and (2) the Applicable Percentage on such
Auction Date, unless such APS have or have had a Special Dividend
Period (other than a Special Dividend Period of 28 Rate Period Days
or less) and an Auction at which Sufficient Clearing Bids existed
has not yet occurred for a Minimum Dividend Period of such APS after
such Special Dividend Period, in which case the higher of:
(1) the dividend rate on such APS for the
then-ending Rate Period, and
(2) the product of (x) the higher of (I) the
"AA" Composite Commercial Paper Rate on such Auction
Date for the then-ending Rate Period of the APS, if such
Rate Period is less than one year, or the Treasury Rate
on such Auction Date for such Rate Period, if such Rate
Period is one year or greater, and (II) the "AA"
Composite Commercial
8
Paper Rate on such Auction Date for such Special
Dividend Period of the APS, if such Special Dividend
Period is less than one year, or the Treasury Rate on
such Auction Date for such Special Dividend Period, if
such Special Dividend Period is one year or greater, and
(y) the Applicable Percentage on such Auction Date; or
(B) in the case of any Auction Date which is
the Auction Date immediately prior to the first day of any
proposed Special Dividend Period designated by the Fund
pursuant to Section 4 of Part I of the APS Provisions, the
product of (1) the highest of (x) the "AA" Composite
Commercial Paper Rate on such Auction Date for the then-ending
Rate Period of the APS, if such Rate Period is less than one
year, or the Treasury Rate on such Auction Date for such Rate
Period, if such Rate Period is one year or greater, (y) the
"AA" Composite Commercial Paper Rate on such Auction Date for
such Special Dividend Period of the APS for which the Auction
is being held, if such Special Dividend Period is less than
one year, or the Treasury Rate on such Auction Date for such
Special Dividend Period of the APS for which the Auction is
being held, if such Special Dividend Period is one year or
greater, and (z) the "AA" Composite Commercial Paper Rate on
such Auction Date for Minimum Dividend Periods and (2) the
Applicable Percentage on such Auction Date.
Not later than 9:30 A.M. on each Auction Date, the Auction Agent
shall notify the Fund and the Broker-Dealers of the Maximum Rate
so determined and the "AA" Composite Commercial Paper Rate(s) and
Treasury Rate(s), as the case may be, used to make such
determination.
(ii) From and after a Failure to Deposit by the Fund
during any Rate Period of the APS, until such failure is cured and a
9
late charge, if applicable, is paid, in accordance with subparagraph
(c)(i) of Section 2 of Part I of the APS Provisions, on the first
day of each Rate Period of the APS the Auction Agent shall determine
the Treasury Rate for such Rate Period, if such Rate Period is one
year or greater, and the "AA" Composite Commercial Paper Rate for
Minimum Dividend Periods and Rate Periods that are less than one
year. Not later than 9:30 A.M. on each such first day, the Auction
Agent shall notify the Fund of the applicable "AA" Composite
Commercial Paper Rate and Treasury Rate.
(iii) If any "AA" Composite Commercial Paper Rate or
Treasury Rate, as the case may be, is not quoted on an interest
basis, the Auction Agent shall convert the quoted rate to the
interest equivalent thereof as set forth in the definition of such
rate in the APS Provisions if the rate obtained by the Auction Agent
is quoted on a discount basis, or if such rate is quoted on a basis
other than an interest or discount basis the Auction Agent shall
convert the quoted rate to an interest rate after consultation with
the Fund as to the method of such conversion.
(iv) If any "AA" Composite Commercial Paper 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 such "AA" Composite Commercial Paper Rate,
the Auction Agent shall immediately notify the Fund so that the Fund
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 Fund shall promptly advise the Auction
Agent of any such selection.
(v) If any Treasury Rate is to be based on rates
supplied by U.S. Government Securities Dealers and one or more of
the U.S. Government Securities Dealers shall not provide a quotation
for the determination of such Trea-
10
xxxx Rate, the Auction Agent shall immediately notify the Fund so
that the Fund can determine whether to select a Substitute U.S.
Government Securities Dealer or Substitute U.S. Government
Securities Dealers to provide the quotation or quotations not being
supplied by any U.S. Government Securities Dealer or U.S. Government
Securities Dealers. The Fund shall promptly advise the Auction Agent
of any such selection.
(c) The greater of the maximum marginal combined regular
federal and New Jersey individual income tax rate applicable to ordinary income
(taking into account the federal income tax deductibility of state and local
income taxes paid or incurred) or the maximum marginal regular federal corporate
income tax rate (the "Highest Marginal Rate") on the date of this Agreement is
34%. If there is any change in the Highest Marginal Rate, the Fund shall notify
the Auction Agent in writing of such change prior to 12:00 Noon on the Business
Day prior to the next Auction Date for APS succeeding such change. In
determining the Maximum Rate for the APS on any Auction Date, the Auction Agent
shall be entitled to rely on the Highest Marginal Rate of which it has most
recently received notice from the Fund (or, in the absence of such notice, the
percentage set forth in the first sentence of this paragraph (c)).
2.4 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 Fund, which consent shall not be
unreasonably withheld. The Auction Agent shall give written notice of any such
change to each Broker-Dealer. Such notice shall be given prior to the close of
business on the Business Day next preceding the first Auction Date on which any
such change shall be effective.
Time Event
---- -----
By 9:30 A.M. Auction Agent advises the Fund and
Broker-Dealers of the applicable Maximum
Rate and the "AA" Composite Commercial Paper
Rate(s) and Treasury Rate(s), as the case
may be, used in determining such Maximum
Rate as
11
set forth in Section 2.3(b)(i) hereof.
9:30 A.M.-- 1:30 P.M. Auction Agent assembles information
communicated to it by Broker-Dealers as
provided in Section 3(a) of the Auction
Procedures. Submission Deadline is 1:30 P.M.
Not earlier than 1:30 P.M. Auction Agent makes determinations
pursuant to Section 4(a) of the Auction
Procedures.
By approximately 3:00 P.M. Auction Agent advises Fund of results of
Auction as provided in Section 4(b) of the
Auction Procedures. Submitted Bids and
Submitted Sell Orders are accepted and
rejected and shares of APS allocated as
provided in Section 5 of the Auction
Procedures. Auction Agent gives notice of
Auction results as set forth in paragraph
(a) of the Settlement Procedures.
2.5 Designation of Special Dividend Period. (a) The APS Provisions
will provide that, subject to the Fund's option to designate a Special Dividend
Period as referred to in paragraph (b) of this Section 2.5, (i) each Rate Period
will consist of six months for the APS and (ii) each Rate Period following a
Rate Period of the APS that is other than a Minimum Dividend Period will be six
months for the APS. Not less than 10 nor more than 20 days prior to the last day
of any such Rate Period that is not a Minimum Dividend Period, (i) the Fund
shall deliver to the Auction Agent a notice of the Auction Date of the next
succeeding Auction for the APS in the form of Exhibit E hereto and (ii) the
Auction Agent shall deliver such notice by first-class mail, postage prepaid,
to each Existing Holder of APS at the address specified in such Existing
Holder's Master Purchaser's Letter and to the
12
Broker-Dealers for such APS as promptly as practicable after its receipt of such
notice from the Fund.
(b) Pursuant to the APS Provisions, the Fund may, at its
option, designate a Special Dividend Period for the APS in the manner described
in Section 4 of Part I of the APS Provisions.
(i) If the Fund proposes to designate any succeeding
Subsequent Dividend Period of the APS as a Special Dividend Period
of more than 28 Rate Period Days, (A) the Fund shall deliver to the
Auction Agent a notice of such proposed Special Dividend Period in
the form of Exhibit F hereto not less than 20 nor more than 30 days
prior to the first day of such proposed Special Dividend Period and
(B) the Auction Agent on behalf of the Fund shall deliver such
notice by first-class mail, postage prepaid, to each Existing Holder
of APS at the address specified in such Existing Holder's Master
Purchaser's Letter and to the Broker-Dealers for the APS as promptly
as practicable after its receipt of such notice from the Fund.
(ii) If the Board of Trustees determines to designate
such succeeding Subsequent Dividend Period as a Special Dividend
Period, (A) the Fund shall deliver to the Auction Agent a notice of
such determination in the form of Exhibit G hereto not later than
11:00 A.M. on the second Business Day next preceding the first day
of such proposed Special Dividend Period and (B) the Auction Agent
shall deliver such notice to the Broker-Dealers for the APS not
later than 3:00 P.M. on such second Business Day.
(iii) If the Fund shall deliver to the Auction Agent a
notice stating that the Fund has determined not to exercise its
option to designate such succeeding Subsequent Dividend Period as a
Special Dividend Period with respect to which it has delivered a
notice in the form of Exhibit F hereto not later than 11:00 A.M. on
the second Business Day next preceding the first day of such
proposed Spe-
13
cial Dividend Period, or shall fail to timely deliver either such
notice or a notice in the form of Exhibit G hereto, the Auction
Agent shall deliver a notice in the form of Exhibit H hereto to the
Broker-Dealers for the APS not later than 3:00 P.M. on such second
Business Day.
A change in the length of a Rate Period to a Rate Period of more than 28 Rate
Period Days shall not occur if (a)- on the Auction Date next preceding the
first day of such Special Dividend Period Sufficient Clearing Bids shall not
exist or (b) a Failure to Deposit shall have occurred prior to such change with
respect to the APS and shall not have been cured in accordance with the APS
Provisions.
2.6 Allocation of Taxable Income. The Fund may, at its option,
designate all or a portion of any dividend on the APS to consist of net capital
gains or other income taxable for federal income tax purposes by delivering to
the Auction Agent a notice in the form of Exhibit K hereto of such designation
15 days prior to the Auction Date on which the Applicable rate for such dividend
is to be fixed. The Auction Agent will deliver such notice to the Broker-Dealers
for such series on the Business Day following its receipt of such notice from
the Fund. Within two Business Days after any Auction Date involving the
allocation of income taxable for federal income tax purposes, or retroactively
allocates income taxable for federal income tax purposes as provided in the APS
Provisions, the Auction Agent shall notify each Broker-Dealer for the APS as to
the dollar amount per share of such taxable income and income exempt from
federal income taxation included in the related dividend.
2.7 Failure to Deposit. (a) If:
(i) any Failure to Deposit shall have occurred with
respect to the APS during any Rate Period thereof (other than any
Special Dividend Period, if such Special Dividend Period is one year
or greater, or any Rate Period succeeding any Special Dividend
Period, if such Special Dividend Period is one year or greater,
during which a Failure to Deposit occurred that has not been cured);
and
14
(ii) prior to 12:00 Noon, New York City time, on the
third Business Day next succeeding the date on which such Failure to
Deposit occurred, such Failure to Deposit shall have been cured in
accordance with the next succeeding sentence and the Fund shall have
paid to the Auction Agent a late charge equal to the sum of (A) if
such Failure to Deposit consisted of the failure timely to pay to
the Auction Agent the full amount of dividends with respect to any
Dividend Period on the APS, an amount computed by multiplying (1)
200% of the "AA" Composite Commercial Paper Rate (or Treasury Rate,
if applicable) for the Rate Period during which such Failure to
Deposit occurs on the Dividend Payment Date for such Dividend Period
by (2) a fraction, the numerator of which shall be the number of
days for which such Failure to Deposit has not been cured in
accordance with the next succeeding sentence (including the day such
Failure to Deposit occurs and excluding the day such Failure to
Deposit is cured) and the denominator of which shall be 365, and
applying the rate obtained against the aggregate liquidation
preference of the outstanding APS and (B) if such Failure to Deposit
consisted of the failure timely to pay to the Auction Agent the
Optional Redemption Price or Mandatory Redemption Price, as the case
may be, of the APS, if any, for which Notice of Redemption has been
given by the Fund pursuant to paragraph (b) of Section 3 of Part I
of the APS Provisions, an amount computed by multiplying (x) 200% of
the "AA" Composite Commercial Paper Rate (or Treasury Rate, if
applicable) for the Rate Period during which such Failure to Deposit
occurs on the redemption date by (y) a fraction, the numerator of
which shall be the number of days for which such Failure to Deposit
was not cured in accordance with the next succeeding sentence
(including the day such Failure to Deposit occurs and excluding the
day such Failure to Deposit was cured) and the denominator of which
shall be 365, and applying the rate obtained against the aggregate
liquidation preference of the outstanding APS to be redeemed,
15
then the Auction Agent shall deliver a notice in the form of Exhibit I hereto by
first-class mail, postage prepaid, to the Broker-Dealers not later than one
Business Day after its receipt of the payment from the Fund curing such Failure
to Deposit and such late charge. A Failure to Deposit with respect to the APS
shall have been cured (if such Failure to Deposit is not solely due to the
willful failure of the Fund to make the required payment to the Auction Agent)
with respect to any Rate Period thereof if, not later than 12:00 Noon, New York
City time, on the fourth Business Day preceding the Auction Date for the Rate
Period subsequent to such Rate Period, the Fund shall have paid to the Auction
Agent (A) all accumulated and unpaid dividends on the APS and (B) without
duplication, the Optional Redemption Price or Mandatory Redemption Price, as the
case may be, for the APS, if any, for which Notice of Redemption has been given
by the Fund pursuant to paragraph (b) of Section 3 of Part I of the APS
Provisions.
(b) If:
(i) any Failure to Deposit shall have occurred with
respect to the APS during a Rate period thereof (other than any
Special Dividend Period, if such Special Dividend Period is one year
or greater, or any Rate Period succeeding any Special Dividend
Period, if such Special Dividend Period is one year or greater,
during which a Failure to Deposit occurred that has not been cured),
and, prior to 12:00 Noon on the third Business Day next succeeding
the date on which such Failure to Deposit occurred, such Failure to
Deposit shall not have been cured within the meaning of the last
sentence of Section 2.7(a) hereof and the Fund shall not have paid
to the Auction Agent the late charge described in such Section
2.7(a), but such Failure to Deposit shall subsequently be so cured;
or
(ii) any Failure to Deposit shall have occurred with
respect to the APS during a Special Dividend Period, if such Special
Dividend Period is one year or greater, or during any Rate Period
succeeding any Special Dividend Period, if such Special Dividend
Period is one year or greater, during which a Fail-
16
ure to Deposit occurred, and such Failure to Deposit shall
subsequently have been cured within the meaning of the last sentence
of Section 2.7(a) hereof,
then the Auction Agent shall deliver a notice in the form of Exhibit J hereto to
the Broker-Dealers not later than one Business Day after the receipt of the
payment from the Fund during such Failure to Deposit. Notwithstanding the
foregoing, the Auction Agent shall conduct an Auction on an Auction Date which
occurs simultaneously with the date of commencement of a Failure to Deposit.
2.8 Broker-Dealers. (a) Not later than 12:00 Noon on each Auction
Date for the APS, the Fund shall pay to the Auction Agent an amount in cash
equal to the aggregate fees payable to the Broker-Dealers pursuant to Section
2.8 of the Broker-Dealer Agreements. The Auction Agent shall apply such moneys
as set forth in Section 2.8 of each such Broker-Dealer Agreement.
(b) The Fund shall obtain the consent of the Auction Agent
prior to selecting any Person to act as a Broker-Dealer, which consent shall not
be unreasonably withheld.
(c) The Auction Agent shall terminate any Broker-Dealer
Agreement as set forth therein if so directed by the Fund, provided that at
least one Broker-Dealer Agreement would be in effect for the APS after such
termination.
(d) Subject to the Auction Agent's having consented to the
selection of the relevant Broker-Dealer pursuant to Section 2.8(b) hereof, the
Auction Agent shall from time to time enter into such Broker-Dealer Agreements
with one or more Broker-Dealers as the Fund shall request, and shall enter into
such schedules to any such Broker-Dealer Agreements as the Fund shall request,
which schedules, among other things, shall set forth the APS to which such
Broker-Dealer Agreement relates.
2.9 Ownership of APS. The Fund shall notify the Auction Agent if the
Fund or any affiliate of the Fund acquires any APS. Neither the Fund nor any
affiliate of the Fund shall submit any Order in any Auction for APS, except as
set forth in the next sentence. Any Broker-Dealer that is an affiliate of the
Fund may submit
17
Orders in Auctions, but only if such Orders are not for its own account. For
purposes of this Section 2.9, a Broker-Dealer shall not be deemed to be an
affiliate of the Fund solely because one or more of the directors or executive
officers of such Broker-Dealer or of any Person controlled by, in control of or
under common control with such Broker-Dealer is also a trustee of the Fund. The
Auction Agent shall have no duty or liability with respect to enforcement of
this Section 2.9.
2.10 Access to and Maintenance of Auction Records. The Auction Agent
shall, upon the receipt of prior written notice from the Fund, afford to the
Fund access at reasonable times during normal business hours to all books,
records, documents and other information concerning the conduct and results of
Auctions. The Auction Agent shall maintain records relating to any Auction for a
period of six years after such Auction, and such records shall, in reasonable
detail, accurately and fairly reflect the actions taken by the Auction Agent
hereunder.
2.11 Dividend and Redemption Price Deposit. The Fund shall pay to
the Auction Agent, not later than 12:00 noon, New York City time, (A) on the
Business Day next preceding any Dividend Payment Date, in funds available on
such Dividend Payment Date in The City of New York, New York, the full amount of
any dividend (whether or not earned or declared) to be paid on such Dividend
Payment Date (B) on the Business Day next preceding any redemption date in funds
available on such redemption date in The City of New York, New York, the
Redemption Price to be paid on such redemption date after notice of redemption
is given as set forth in the Certificate of Vote.
3. The Auction Agent as Dividend and
Redemption Price Disbursing Agent.
The Auction Agent, as dividend and redemption price disbursing
agent, shall pay to the Holders of APS (i) on each Dividend Payment Date,
dividends on the APS, (ii) on any date fixed for redemption of APS, the
Redemption Price of the APS called for redemption and (iii) any late charge
related to any payment of dividends or Redemption Price, in each case after
receipt of the necessary funds from the Fund with which to pay such dividends,
Redemption Price or late charge. The amount of
18
dividends for any Rate Period for the APS to be paid by the Auction Agent to the
Holders of such shares of such series will be determined by the Fund as set
forth in Section 2 of Part I of the APS Provisions. The Redemption Price of any
APS to be paid by the Auction Agent to the Holders will be determined by the
Fund as set forth in Section 3 of Part I of the APS Provisions. The Fund shall
notify the Auction Agent in writing of a decision to redeem any APS at least
five days prior to the date a notice of redemption is required to be mailed to
the Holders of the APS to be redeemed by paragraph (b) of Section 3 of Part I of
the APS Provisions. Such notice by the Fund to the Auction Agent shall contain
the information required by paragraph (b) of Section 3 of Part I of the APS
Provisions to be stated in the notice of redemption required to be mailed by the
Auction Agent to such Holders.
4. The Auction Agent as Transfer Agent and Registrar.
4.1 Issue of Share Certificates. Upon the Date of Original Issue of
the APS, one certificate representing all of the APS issued on such date shall
be issued by the Fund and, at the request of the Fund, registered in the name of
Cede & Co. and countersigned by the Auction Agent.
4.2 Registration of Transfer of Shares. The APS shall be registered
solely in the name of the Securities Depository or its nominee.
4.3 Removal of Legend on Restricted Shares. All requests for removal
of legends on any APS indicating restrictions on transfer shall be accompanied
by an opinion of counsel stating that such legends may be removed and such
shares freely transferred, such opinion to be delivered under cover of a letter
from a Fund Officer authorizing the Auction Agent to remove the legend on the
basis of said opinion.
4.4 Lost Share Certificates. The Auction 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 Fund and the Auction Agent, subject at all times to
provisions of law, the By-Laws of the Fund governing such matters and
resolutions adopted by the Fund with respect to lost securities. The
19
Auction Agent may issue new certificates in exchange for and upon the
cancellation of mutilated certificates. Any request by the Fund to the Auction
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 Fund to the Auction
Agent that such issuance will comply with such provisions of law and the By-Laws
and resolutions of the Fund.
4.5 Disposition of Cancelled Certificates; Record Retention. The
Auction Agent shall retain all share certificates which have been cancelled in
transfer or exchange and all accompanying documentation in accordance with
applicable rules and regulations of the Securities and Exchange Commission for
two calendar years. Upon the expiration of this two-year period, the Auction
Agent shall deliver to the Fund the cancelled certificates and accompanying
documentation. The Fund also shall 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 Fund without the concurrence of the
Auction Agent.
4.6 Share Transfer Books. For so long as the Auction Agent, Bankers
Trust Company, is acting as the transfer agent for any of the APS pursuant to
this Agreement, it shall maintain a share transfer book containing a list of the
Holders of the APS, the number of APS held by such Holders and the address of
each Holder. The Auction Agent shall record in such share transfer books any
change of address of a Holder upon notice by such Holder. In case of any request
or demand for the inspection of the share transfer books of the Fund or any
other books in the possession of the Auction Agent, the Auction Agent will
notify the Fund and secure instructions as to permitting or refusing such
inspection. The Auction Agent reserves the right, however, to exhibit the share
transfer books or other books to any Person in case it is advised by its counsel
that its failure to do so would be unlawful.
4.7 Return of Funds. Any funds deposited with the Auction Agent
hereunder by the Fund for any reason, including but not limited to redemption of
APS, that remain unpaid after ninety days shall be repaid to the
20
Fund upon the written request of the Fund, together with interest, if any,
earned thereon.
5. Representations and Warranties of the Fund.
The Fund represents and warrants to the Auction Agent that:
(a) the Fund has been duly organized and is subsisting as a
voluntary association with transferable shares (commonly referred to as a
Massachusetts business trust) under the laws of the Commonwealth of
Massachusetts and has all necessary power and authority to execute and deliver
this Agreement and to authorize, create and issue the APS;
(b) this Agreement has been duly and validly authorized,
executed and delivered by the Fund and, assuming due authorization, execution
and delivery by the Auction Agent, constitutes the legal, valid and binding
obligation of the Fund subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium, receivership or similar laws, whether statutory or
decisional, relating to or affecting creditors' rights and to general equitable
principles (regardless of whether enforcement is sought in equity or at law);
(c) the form of the certificate evidencing the APS complies
with all applicable laws of the Commonwealth of Massachusetts;
(d) the APS, when issued, delivered and paid for on the Date
of Original Issue as contemplated by the Underwriting Agreement, will have been
duly authorized, validly issued, fully paid and nonassessable, except as
provided under New Jersey law;
(e) assuming the Underwriters comply with their obligations
under the Underwriting Agreement and that the purchasers of the APS comply with
their obligations in the Master Purchaser's Letter, no consent, authorization or
order of, or filing or registration with, any court, governmental agency or
official (except such as have been obtained and such as may be required under
the Securities Act of 1933, as amended, or the Investment Company Act of 1940,
as amended, or under the blue sky or state securities laws) is required in
connection with the
21
execution and delivery of this Agreement or the issuance of the APS; and
(f) the issuance and sale of the APS, the execution, delivery
and performance of this Agreement, compliance by the Fund with all provisions
hereof, and the consummation of the transactions contemplated hereby or by the
Underwriting Agreement or the Broker-Dealer Agreements, will not conflict with,
constitute a breach of any of the terms or provisions of, or a default under, or
result in the creation or imposition of any material lien, charge or encumbrance
upon any of the assets of the Fund pursuant to the terms of any agreement,
indenture or instrument to which the Fund is a party or by which the Fund is
bound, or result in a violation of the Declaration of Trust, APS Provisions or
By-Laws of the Fund or of any order, rule or regulation of any court or
governmental agency having jurisdiction over the Fund or its property which
conflict, breach, default, lien or violation, individually or in the aggregate,
would have a material adverse effect on the business, financial position or
results of operations of the Fund.
6. The Auction Agent.
6.1 Duties and Responsibilities. (a) The Auction Agent is acting
solely as agent for the Fund hereunder and owes no fiduciary duties to any other
Person by reason of this Agreement.
(b) The Auction Agent undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement and the
Broker-Dealer Agreements, and no implied covenants or obligations shall be read
into this Agreement against the Auction Agent.
(c) In the absence of bad faith or gross negligence on its
part, the Auction 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 except that the Auction Agent shall be liable for any error
of judgment made in good faith if the Auction Agent shall have been grossly
negligent in ascertaining the pertinent facts.
(d) Any funds deposited with the Auction Agent hereunder by
the Fund for any reason, including the payment of dividends or the redemption of
APS, that re-
22
main with the Auction Agent after 90 days shall be repaid to the Fund upon the
written request of the Fund, together with interest, if any, earned thereon.
6.2 Rights of the Auction Agent. (a) The Auction 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, share certificate or other instrument, paper or
document 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 Fund or by any
Broker-Dealer. The Auction Agent may record telephone communications with the
Fund or with any Broker-Dealer.
(b) The Auction Agent may consult with counsel reasonably
acceptable to the Fund 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 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.
(d) The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys and shall
not be responsible for any misconduct on the part of any agent or attorney
appointed by it with due care hereunder except as set forth above in Section
6.1(c).
6.3 Auction Agent's Disclaimer. The Auction Agent makes no
representation as to the validity or adequacy of this Agreement (except as to
the Auction Agent's duties hereunder and as to the due authorization, execution
and delivery of this Agreement), the Broker-Dealer Agreements (except as to the
Auction Agent's duties thereunder) or the APS.
6.4 Compensation, Expenses and Indemnification. (a) The Fund shall
pay the Auction Agent from time to time reasonable compensation for all services
rendered by it under this Agreement and the Broker-Dealer
23
Agreements in such amounts as may be agreed to by the Fund and the Auction Agent
from time to time.
(b) The Fund 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 the
Broker-Dealer Agreements (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any expense or
disbursement attributable to its gross negligence or bad faith.
(c) The Fund shall indemnify the Auction Agent for and hold it
harmless against, any loss, liability or expense incurred without gross
negligence or bad faith on its part, arising out of or in connection with its
agency under this Agreement and the Broker-Dealer Agreements, including the
costs and expenses of defending itself against any claim or liability in
connection with its exercise or performance of its duties hereunder and
thereunder for which indemnification is provided by this subsection.
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 Fund may
terminate this Agreement any time by so notifying the Auction Agent in writing,
provided that the Fund has entered into an agreement in substantially the form
of this Agreement with a successor auction agent. The Auction Agent may
terminate this Agreement upon written notice to the Fund, such termination to be
effective on the earlier of (i) the date specified in such notice which shall
not be earlier than 90 days after the giving of such notice or (ii) the date on
which a successor trust company is appointed by the Fund pursuant to an
agreement containing substantially the same terms and conditions as this
Agreement.
(b) Except as otherwise provided in this paragraph (b), the
respective rights and duties of the Fund and the Auction Agent under this
Agreement shall cease upon termination of this Agreement. The Fund's obligations
under Section 6.4 hereof and its representations and warranties contained in
Section 5 hereof and the Auction Agent's obligations and liabilities under
24
Sections 2.10 and 4.5 hereof shall survive the termination hereof. Upon
termination of this Agreement, the Auction Agent shall, at the Fund's request,
promptly deliver to the Fund copies of all books and records maintained by it in
connection with its duties hereunder.
7.2 Communications. Except for (a) communications authorized to be
by telephone pursuant to this Agreement or the Auction Procedures and (b)
communications in connection with Auctions (other than those expressly required
to be in writing) and unless otherwise specified by the terms of 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, Van Xxxxxx Xxxxxxx
addressed: Trust For Investment
Grade Florida
Municipals
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telephone No.: (000) 000-0000
With a copy sent to:
Xxxxxx XxXxxxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Auction Bankers Trust Company
Agent, addressed: Corporate Trust and Agency Group
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Rate Securities
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
25
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
given on behalf of the Fund by a Fund Officer and on behalf of the Auction Agent
by an Authorized Officer. Communications shall be effective when received at the
proper address.
7.3 Entire Agreement. This Agreement contains the entire agreement
among 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 Fund, the Auction 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 the party to be charged. The Fund shall notify the Auction
Agent and each Broker-Dealer of any change in the Fund's Declaration of Trust,
as amended and restated as of the date hereof, prior to the effective date of
any 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 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 of
each of the Fund and the Auction Agent.
7.7 Limitation of Liability. Pursuant to the provisions of Article
V, Section 5.5 of the Fund's Declaration of Trust, as amended or restated as of
the date hereof, this Agreement is entered into by the trustees of the Fund not
individually, but as trustees under such Declaration of Trust and the
obligations of the Fund hereunder are not binding upon any such trustees or
26
shareholders of the Fund, individually, but bind only the trust estate.
7.8 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.
7.9 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.
7.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Auction
Agency Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the date first above written.
VAN XXXXXX XXXXXXX
TRUST FOR INVESTMENT
GRADE FLORIDA MUNICIPALS
By /s/ Xxxxxx X. XxXxxxxxx
-----------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: President
BANKERS TRUST COMPANY
By /s/ Xxxxxx Xxxxxx
-----------------------------------------
Name: XXXXXX XXXXXX
Title: ASSISTANT TREASURER
27
