Exhibit 13(b)
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AUCTION AGENT AGREEMENT
between
MUNIYIELD FLORIDA FUND
and
IBJ XXXXXXXX BANK & TRUST COMPANY
Dated as of April 10, 1992
Relating to
Auction Market Preferred Stock(R)
( "AMPS"(R) )
of
MUNIYIELD FLORIDA FUND
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(R) Registered trademark of Xxxxxxx Xxxxx Co., Inc.
THIS AUCTION AGENT AGREEMENT dated as of April 10, 1992, between
MUNIYIELD FLORIDA FUND, a Massachusetts business trust (the "Trust"), and IBJ
XXXXXXXX BANK & TRUST COMPANY, a New York banking corporation.
The Trust proposes to,-,duly authorize and issue 1,000 shares of
Auction Market Preferred Stock(R) (the "AMPS"), with a par value of $.10 per
share and a liquidation preference of $50,000 per share plus an amount equal to
accumulated but unpaid dividends (whether or not earned or declared) pursuant to
the Trust's Certificate of Designation (as defined below). The Trust desires
that IBJ Xxxxxxxx Bank & Trust Company perform certain duties as agent in
connection with each Auction of shares of AMPS (the "Auction Agent") and as the
transfer agent, registrar, dividend disbursing agent and redemption agent with
respect to the shares of AMPS (the "Paying Agent") upon the terms and conditions
of this Agreement, and hereby appoints IBJ Xxxxxxxx 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 Trust and the Auction Agent agree as follows:
1. Definitions and Rules of Construction.
1.1 Terms Defined by Reference to Certification of Designation.
Capitalized terms not defined herein shall have the respective meanings
specified in the Certificate of Designation.
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 Trust, or its successors.
(b) "Agent Member" of any Person shall mean such Person's agent member of the
Securities Depository who is identified as such in such Person's
Purchaser's Letter.
(c) "Auction" shall have the meaning specified in Section 2.1 hereof.
(d) "Auction Procedures" shall mean the Auction Procedures that are set forth
in Paragraph 11 of the Certificate of Designation.
(e) "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
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(R) Registered trademark of Xxxxxxx Xxxxx & Co., Inc.
every other officer or employee of the Auction Agent designated as an
"Authorized Officer" for purposes hereof in a communication to the Trust.
(f) "Broker-Dealer Agreement" shall mean each agreement between the Auction
Agent and a Broker-Dealer substantially in the form attached hereto as
Exhibit A.
(g) "Certificate of Designation" shall mean the Certificate of Designation of
the Trust, establishing the powers, preferences and rights of the AMPS,
filed on April 7, 1992, in the office of the Secretary of State of the
Commonwealth of Massachusetts.
(h) "Trust 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 Trust and every other officer or employee of the Trust
designated as a "Trust Officer" for purposes hereof in a notice from the
Trust 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.
(j) "Purchaser's Letter" shall mean a letter addressed to the Trust, the
Auction Agent and a Broker-Dealer, substantially in the form attached to
the Broker-Dealer Agreement as Exhibit A.
(k) "Settlement Procedures" shall mean the Settlement Procedures attached to
the Broker-Dealer Agreement as Exhibit B.
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.
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2. The Auction.
2.1 Purpose; Incorporation by Reference of
Auction Procedures and Settlement Procedures.
(a) The certificate of Designation provides that the
Applicable Rate on shares of AMPS 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 Trust advises results from implementation of the
Auction Procedures. The Board of Trustees of the Trust has adopted a
resolution appointing IBJ Xxxxxxxx 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 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 for Each Auction;
Maintenance of Registry of Beneficial Owners.
(a) Pursuant to Section 2.5 hereof, the Trust shall not
designate any Person to act as a Broker-Dealer without prior written
approva;,of the Auction Agent (which approval shall not be withheld
unreasonably). At the time of closing of the initial issuance and sale
of the AMPS (the "Closing"), the Trust 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
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 days prior to any Auction Date for which any change in such list
of Broker-Dealers is to be effective, the Trust 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 Trust 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
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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) With respect to each Dividend Period that is a Special
Dividend Period, the Trust may, at its sole option and to the extent
permitted by law, by telephonic and written notice (a "Request for
Special Dividend Period") to the Auction Agent and to each
Broker-Dealer, request that the next succeeding Dividend Period for the
AMPS will be a number of days (other than seven), evenly divisible by
seven, and not fewer than seven nor more than 364 in the case of a
Short Term Dividend Period or a number of whole years not greater than
five years in the case of a Long Term Dividend Period, specified in
such notice, provided that for any Auction occurring after the initial
Auction, the Trust may not give a Request for Special Dividend Period
(and any such request shall be null and void) unless the Trust has
received written confirmation from S&P that such action would not
impair the rating then assigned to the AMPS by S&P and unless
sufficient Clearing Bids were made in the last occurring Auction and,
unless full cumulative dividends, any amounts due with respect to
mandatory redemptions and any Additional Dividends payable prior to
such date have been paid in full. Such Request for Special Dividend
Period, in the case of a Short Term Dividend Period, shall be given on
or prior to the fourth day but not more than seven days prior to an
Auction Date for the AMPS and, in the case of a Long Term Dividend
Period, shall be given on or prior to the 14th day but not more than 28
days prior to the Auction Date for the AMPS. Upon receiving such
Request for Special Dividend Period, the Broker-Dealers(s) shall
jointly determine whether given the factors set forth in paragraph
2(c)(iii) of the Certificate of Designation it is advisable that the
Trust issue a Notice of Special Dividend Period for the AMPS as
contemplated by such Request for Special Dividend Period and the
Optional Redemption Price of the AMPS during such Special Dividend
Period and the Specific Redemption Provisions and shall give the Trust
and the Auction Agent written notice (a "Response") of such
determination by no later than the third day prior to such Auction
Date. If the Broker-Dealers shall not give the Trust and the Auction
Agent a Response by such third day or if the Response states that given
the factors referred to above it is not advisable that the Trust give a
Notice of Special Dividend Period (as defined below) for the AMPS, the
Trust may not give a Notice of Special Dividend Period in respect of
such Request for Special Dividend Period. In the event the Response
indicates that it is advisable that the Trust give a Notice of Special
Dividend Period for the AMPS, the Trust may by no later than the second
day prior to such Auction Date give a notice (a "Notice of Special
Dividend Period") to the Auction Agent, the Securities Depository and
each Broker-Dealer, which notice will specify (i) the duration of the
Special Dividend Period, (ii) the Optional Redemption Price as
specified in the related Response and (iii) the Specific Redemption
Provisions, if any, as specified in the related Response. The Trust
shall not give a Notice of Special Dividend Period, or, if such Notice
of Special Dividend Period shall have already been given, shall give
telephonic and written notice (a "Notice of Revocation") to the Auction
Agent, each Broker-Dealer, and the Securities Depository on or prior to
the Business Day prior to the relevant Auction Date if (x) either the
1940 Act AMPS Coverage is not satisfied or the Trust shall fail to
maintain S&P Eligible Assets and Xxxxx'x Eligible Assets each with an
aggregate Discounted Value at least equal to the AMPS Basic Maintenance
Amount in each case on each of the two Valuation Dates immediately
preceding the Business Day prior to the
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relevant Auction Date on an actual basis and on a pro forma basis
giving effect to the proposed Special Dividend Period (using as a pro
forma dividend rate with respect to such Special Dividend Period the
dividend rate which the Broker-Dealers shall advise the Trust is an
approximately equal rate for securities similar to the AMPS with an
equal dividend period), provided that in calculating the aggregate
Discounted Value of Xxxxx'x Eligible Assets for this purpose, the
Xxxxx'x Exposure Period shall be deemed to be one week longer, (y)
sufficient funds for the payment of dividends payable on the
immediately succeeding Dividend Payment Date have not been irrevocably
deposited with the Auction Agent by the close of business on the third
Business Day preceding the related Auction Date or (z) the
Broker-Dealers jointly advise the Trust that after consideration of
the factors referred to above they have concluded that it is advisable
to give a Notice of Revocation. If the Trust is prohibited from giving
a Notice of Special Dividend Period as a result of the factors
enumerated in clause (x), (y) or (z) of the preceding sentence or if
the Trust gives a Notice of Revocation with respect to a Notice of
Special Dividend Period, the next succeeding Dividend Period will be a
7-day Dividend Period, in addition, in the event sufficient Clearing
Bids are not made in any Auction or an Auction is not held for any
reason, the next succeeding Dividend Period will be a 7-day Dividend
Period and the Trust may not again give a Notice of Special Dividend
Period (and any such attempted notice shall be null and void) until
sufficient Clearing Bids have been made in an Auction with respect to
a 7-day Dividend Period.
(d) (i) Whenever the Trust intends to include any net
capital gains or other taxable income in any dividend on shares of
AMPS, the Trust 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 Trust, it will in turn
notify each Broker-Dealer, who, on or prior to such Auction Date, in
accordance with its Broker-Dealer Agreement, will notify its Existing
Holders and Potential Holders believed to be interested in submitting
an order in the Auction to be held on such Auction Date.
(ii) If the Trust makes a Retroactive Taxable allocation,
the Trust will, within 90 days (and generally within 60 days) after the
end of its fiscal year for which a Retroactive Taxable Allocation is
made provide notice thereof to the Auction Agent and to each holder of
shares (initially the Securities Depository) during such fiscal year at
such holder's address as the same appears or last appeared on the share
books of the Trust. The Trust will, within 30 days after such notice is
given to the Auction Agent, pay to the Auction Agent (who will then
distribute to such holders of shares of AMPS), 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 Certificate of
Designation; 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
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consultation with the Trust as to the method of such conversion. Not
later than 9:30 A.M. on each Auction Date, the Auction Agent shall
notify the Trust and the Broker-Dealers of the Reference Rate so
determined and the Maximum Applicable Rate.
(ii) Upon receipt by the Trust of the written advice
contemplated by subsection (i) of the definition of "Reference Rate" in
section 1(a) of the Certificate of Designation, the Trust shall as soon
as practicable, and in no event later than the day next preceding the
next Auction Date, forward a copy of such written advice to the Auction
Agent.
(iii) 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
shall immediately notify the Trust so that the Trust 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 Trust shall promptly advise the Auction Agent of any such
selection. If the Trust 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.
(iv) 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 Trust 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 11(a)(vii) of the Certificate of Designation. The Auction
Agent shall be entitled to rely on the last Percentage of which it has
received notice from the Trust (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 beneficial owners of the shares of AMPS who shall constitute the
Existing Holders for purposes of each Auction. The Trust shall use its
best efforts to provide or cause to be provided to the Auction Agent
within ten days following the date of Closing a list of the initial
Existing Holders 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.
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(ii) In the event of any partial redemption of AMPS, upon
notice by the Trust to the Auction Agent of such partial redemption,
the Auction Agent shall promptly request the Securities Depository to
notify the Auction Agent of the identities of the Agent Members (and
the respective numbers of shares) from the account 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 AMPS
of each such Existing Holder, if any, to be redeemed by the Trust;
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 is to request such information. If necessary to procure such
information, the Auction Agent shall deliver to each Agent Member a
facsimile copy of the Purchaser's Letter of each Existing Holder
represented by such Agent Member, 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 shares of AMPS shown in the Auction
Agent's registry of beneficial owners.
(iii) The Auction Agent shall register a transfer of the
beneficial ownership of shares of AMPS from an Existing Holder to
another Person only if such transfer is made to a Person that has
delivered a signed Purchaser's Letter to the Auction Agent and only if
(A) such transfer is pursuant to an Auction or (B) if such transfer is
made other than pursuant to an Auction, the Auction Agent has been
notified in writing 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 Broker-Dealer of such Existing
Holder of such transfer. 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 beneficial owners of any shares of AMPS if
the Auction Agent has been notified in writing in a notice
substantially in the form of Exhibit E 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 Existing Holders 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 Broker-Dealer and the Trust, 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.
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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 Trust, which consent shall not be unreasonably withheld. 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 Trust 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
11(c)(i) of the Certificate of Designation.
Submission deadline is 1:00 P.M.
Not earlier than 1:00 P.M. Auction Agent makes determinations pursuant
to Paragraph 11(d)(i) of the Certificate of
Designation.
By approximately 3:00 P.M. Auction Agent advises Trust of results of Auction
as provided in Paragraph 11(d)(ii) of the
Certificate of Designation.
Submitted Bids and Submitted Sell Orders are
accepted and rejected in whole or in part and
shares of AMPS allocated as provided in Paragraph
11(e) of the Certificate of Designation.
By approximately 10:00 A.M. Auction Agent gives notice of Auction results as
on the next succeeding set Business Day forth in Section 2.4 hereof.
Business Day
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.
2.5 Broker-Dealers.
(a) Not later than 12:00 noon on each Auction Date, the Trust shall
pay to the Auction Agent in New York Clearing House or similar next-day
funds an amount in cash
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equal to (i) in the case of any Auction Date immediately preceding a 7-day
Dividend Period or Short-Term 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) $50,000, 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 Long Term Dividend Period, the amount determined by
mutual consent of the Trust and the Broker-Dealers pursuant to Section 3.5
of the Broker-Dealer Agreements. In lieu of making such payment in New York
Clearing House or similar next-day funds, the Trust may make such payment
by noon on the Business Day immediately following the Auction Date in the
form of Federal funds or similar same-day funds. 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 Trust any remaining funds paid
to the Auction Agent pursuant to this Section 2.5(a).
(b) The Trust shall not designate any Person to act as a Broker-Dealer
without the prior written approval of the Auction Agent, which written
approval shall not be unreasonably withheld. The Trust may designate an
Affiliate and 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 Trust.
(d) Subject to Section 2.5(b) hereof, the Auction Agent shall from
time to time enter into such Broker-Dealer Agreements as the Trust 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 Trust and Affiliates.
Neither the Trust nor any Affiliate of the Trust may submit any Sell
order or Bid, directly or indirectly, in any Auction, except that an Affiliate
of the Trust that is a Broker-Dealer may submit a Sell Order or Bid on behalf of
an Existing Holder or Potential Holder. The Trust shall notify the Auction Agent
if the Trust or, to the best of the Trust's knowledge, any Affiliate of the
Trust becomes an Existing Holder of any shares of AMPS. Any shares of AMPS
redeemed, purchased or otherwise acquired (i) by the Trust shall not be reissued
or (ii) by its Affiliates shall not be transferred (other than to the Trust).
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 Trust, its agents, independent
public accountants and counsel, access at reasonable times during normal
business hours to review and make extracts or copies (at the Trust'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 Trust
requesting that the Auction Agent afford such person access. The Auction Agent
shall maintain records
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relating to any Auction for a period of two years after such Auction (unless
requested by the Trust to maintain such records for such longer period not in
excess of four years, then for such longer period), and such records shall, in
reasonable detail, accurately and fairly reflect the actions taken by the
Auction Agent hereunder. The Trust agrees to keep any information regarding the
customers of any Broker-Dealer received from the Auction Agent in connection
with this Agreement or any Auction confidential 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. 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.
3. The Auction Agent as Paying Agent.
3.1 Paying Agent.
The Board of Trustees of the Trust has adopted a resolution appointing
IBJ Xxxxxxxx Bank & Trust Company as transfer agent, registrar, dividend
disbursing agent and redemption agent for the Trust in connection with any
shares of AMPS (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 Certificate of Designation which are specified herein as
Paying Agent with respect to the shares of AMPS and as set forth in this Section
3.
3.2 The Trust's Notices to Paying Agent.
Whenever any shares of AMPS are to be redeemed, the Trust shall
promptly deliver to the Paying Agent the Notice of Redemption, which will be
mailed by the Trust to each Holder, at least five days prior to the date such
Notice of Redemption is required to be mailed by the Certificate of Designation.
The Paying Agent shall have no responsibility to confirm or verify the accuracy
of any such notice.
3.3 Trust to Provide Funds for Dividends, Redemptions and Additional
Dividends.
(a) Not later than noon, on the Business Day immediately preceding
each Dividend Payment Date, the Trust shall deposit with the Paying Agent an
aggregate amount of New York Clearing House or similar next-day 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. In
lieu of making such deposit in New York Clearing House or similar next-day
funds, the Trust may make such deposit by noon on each Dividend Payment Date
in the form of Federal funds or similar same-day funds.
(b) If the Trust shall give the Notice of Redemption then, by noon of
the Business Day immediately preceding the date fixed for redemption, the
Trust shall deposit in trust with the Paying Agent an aggregate amount of
New York Clearing House or similar next-day funds sufficient to redeem such
shares of AMPS called for redemption and shall give the Paying Agent
irrevocable instructions and authority to pay
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the redemption price to the Holders of shares of AMPS called for redemption
upon surrender of the certificate or certificates therefor. In lieu of
making such deposit in New York Clearing House or similar next-day funds,
the Trust may make such deposit by noon on the date fixed for redemption in
the form of Federal funds or similar same-day funds.
(c) If the Trust provides notice to the Auction Agent of a Retroactive
Taxable Allocation, the Trust shall, within 30 days after such notice is
given and by noon of the Business Day immediately preceding the date fixed
for payment of an Additional Dividend, deposit in trust with the Paying
Agent an aggregate amount of New York Clearing House or similar next-day
funds equal to such Additional Dividend and shall give the Paying Agent
irrevocable instructions and authority to pay the Additional Dividends to
Holders (or former Holders) of AMPS entitled thereto. In lieu of making such
deposit in New York Clearing House or similar next-day funds, the Trust may
make such deposit by noon on the date fixed for payment of an Additional
Dividend in the form of Federal funds or similar same-day funds.
3.4 Disbursing Dividends, Redemption Price and Additional Dividends.
After receipt of the New York Clearing House or similar next-day funds
(or Federal funds or similar same-day funds) and instructions from the Trust
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 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 Trust as set forth in
Paragraph 2 of the Certificate of Designation. 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 Certificate of
Designation. 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 Trust pursuant to paragraph 2(e) of the Certificate of Designation. The
Trust 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 Trust to the Paying Agent shall contain the information required
to be stated in the Notice of Redemption required to be mailed by the Trust 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 the Notice of Redemption.
4. The Paying Agent as Transfer Agent and Registrar.
4.1 Original Issue of Share Certificate.
On the Date of Original Issue, one certificate for the AMPS shall be
issued by the Trust and registered in the name of Cede & Co., as nominee of the
Securities Depository, and countersigned by the Paying Agent.
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4.2 Registration of Transfer or Exchange of Shares.
Except as provided in this Section 4.2, the shares 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 Trust shall not have selected a substitute Securities Depository
acceptable to the Paying Agent prior to such resignation, then upon such
resignation, the shares of AMPS may, at the Trust's request, 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 and 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 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
transferred free of the restriction described in such legend, said opinion to be
delivered under cover of a letter from a Trust Officer authorizing the Paying
Agent to remove the legend on the basis of said opinion.
4.4 Lost 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 Trust and
the Paying Agent, subject at all times to provisions of law, the By-Laws of the
Trust governing such matters and resolutions adopted by the Trust with respect
to lost securities. The Paying Agent may issue new certificates in exchange for
and upon the cancellation of mutilated certificates. Any request by the Trust 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 Trust to
the Paying Agent that such issuance will comply with such provisions of
applicable law and the By-Laws and resolutions of the Trust.
4.5 Disposition of Cancelled Certificates; Record Retention.
The Paying Agent shall retain share certificates which 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 Paying
Agent shall, upon written request from the Trust, afford to the Trust, its
agents and counsel access at reasonable times during normal business hours to
review and make extracts or copies (at the Trust's sole cost and expense) of
such certificates and
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accompanying documentation. Upon request by the Trust at any time after the
expiration of this two-year period, the Paying Agent shall deliver to the Trust
the cancelled certificates and accompanying documentation. The Trust 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 Trust 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 Trust shall also undertake to
furnish to the Securities and Exchange commission, 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 Trust without the approval of the Paying Agent, which shall not
be unreasonably withheld, but will be safely stored for possible future
reference.
4.6 Share 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 share 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 Trust in the possession of the Paying Agent, thd Paying Agent will notify
the Trust 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 Trust shall have offered indemnification satisfactory to the Paying Agent.
4.7 Return of Funds.
Any funds deposited with the Paying Agent by the Trust for any reason
under this Agreement, including for the payment of dividends or the redemption
of shares of AMPS, that remain with the Paying Agent after 12 months shall be
repaid to the Trust upon the written request of the Trust.
5. Representations and Warranties.
(a) The Trust represents and warrants to the Auction Agent that:
(i) the Trust is duly organized and validly existing as a
business trust under the laws of the Commonwealth of Massachusetts and has
full power to execute and deliver this Agreement and to authorize, create
and issue the shares of AMPS;
(ii) the Trust 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 Trust and constitutes the legal, valid and
binding obligation of the Trust, enforceable against the Trust 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;
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(iv) the form of certificate evidencing the shares of AMPS
complies with all applicable laws of the Commonwealth of Massachusetts;
(v) the shares of AMPS have been duly and validly authorized
by the Trust and, upon completion of the initial sale of the shares of AMPS
and receipt of payment therefor, will be validly issued, fully paid and
nonassessable;
(vi) the offering of the shares of AMPS has been 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 as required in connection with the execution and delivery of
this Agreement or the issuance of the shares of AMPS except as required by
applicable state securities or insurance laws, all of which have been taken;
(vii) the execution and delivery of this Agreement and the
issuance and delivery of the shares 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 Declaration of Trust or the By-Laws
of the Trust, any law or regulation applicable to the Trust, any order or
decree of any court or public authority having jurisdiction over the Trust,
or any mortgage, indenture, contract, agreement or undertaking to which the
Trust 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 the issuance of the shares of AMPS.
(b) The Auction Agent represents and warrants to the Trust 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.
6. The Auction Agent.
6.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the Trust
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 specifically set forth 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 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.
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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
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 Trust or
by a Broker-Dealer. The Auction Agent may record telephone communications
with the Trust or with the Broker-Dealers or 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 Trust.
(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
adequacy of this Agreement, the Broker-Dealer Agreements or the AMPS.
6.4 Compensation, Expenses and Indemnification.
(a) The Trust shall pay the Auction Agent from time to time reasonable
compensation for all services rendered by it under this Agreement and the
Broker-Dealer Agreements.
(b) The Trust 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, expenses
and disbursements of its agents and counsel), except any expense,
disbursement and advances attributable to its negligence or bad faith.
(c) The Trust 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 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 any of its duties hereunder
and thereunder, except such as may result from its negligence or bad faith.
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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 Trust may terminate this
Agreement at any time by so notifying the Auction Agent, provided that if
any AMPS remain outstanding the Trust 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 prior notice to the Trust on
the date specified in such notice, which 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 Trust shall use its best efforts to enter
into an agreement with a successor auction agent containing substantially
the same term and conditions as this Agreement.
(b) Except as otherwise provided in this Section 7.1(b), the
respective rights and duties of the Trust and the Auction Agent under this
Agreement shall cease upon termination of this Agreement. The Trust'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 Trust's request,
promptly deliver to the Trust copies of all books and records maintained by
it in connection with its duties hereunder, and (iii) at the request of the
Trust, promptly transfer to the Trust or any successor auction agent any
funds deposited by the Trust with the Auction Agent (whether in its capacity
as Auction Agent or Paying Agent) pursuant to this Agreement which have not
previously been distributed 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 addressed to it at its address, or telecopy
number set forth below:
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If to the Trust, addressed: MuniYield Florida Fund
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasurer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Auction Agent, IBJ Xxxxxxxx Bank & Trust Trust
addressed: 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 telecopy number as such party may hereafter 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 Trust by a Trust 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 Trust, 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 Trust shall notify the Auction Agent of any change in the
Certificate of Designation 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 right or remedy with respect to any
subsequent breach.
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7.6 Successor 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
Trust 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 unreasonably withheld.
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.
7.10 Personal Liability.
The Declaration of Trust establishing MuniYield Florida Fund, dated
January 21, 1992, a copy of which, together with all amendments thereto (the
"Declaration"), is on file in the office of the Secretary of the Commonwealth of
Massachusetts, provides that the name "MuniYield Florida Fund" refers to the
Trustees under the Declaration collectively as Trustees, but not as individuals
personally; and no Trustee, shareholder, officer, employee or agent of the Trust
shall be held to any personal liability, nor shall resort be had to their
private property for the satisfaction of any obligation or claim or otherwise in
connection with the affairs of the Trust, but the "Trust Property" only shall be
liable.
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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.
MUNIYIELD FLORIDA FUND
By: /s/ X.X. Xxxxx
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Title: Vice President
IBJ XXXXXXXX BANK & TRUST COMPANY
By:
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Title: Assistant Vice President
