Exhibit (k)(1)
FORM OF
AUCTION AGENT AGREEMENT
between
XXXXX XXXXX SENIOR INCOME TRUST
and
BANKERS TRUST COMPANY
Dated as of June [__], 2001
Relating to
AUCTION PREFERRED SHARES
SERIES A AND SERIES B
of
XXXXX XXXXX SENIOR INCOME TRUST
TABLE OF CONTENTS
Page
1. DEFINITIONS AND RULES OF CONSTRUCTION.....................................1
1.1 Terms Defined by Reference to the Amended By-laws....................1
1.2 Terms Defined Herein.................................................1
1.3 Rules of Construction................................................2
2. THE AUCTION...............................................................2
2.1 Purpose; Incorporation by Reference of Auction
Procedures and Settlement Procedures................................2
2.2 Preparation for Each Auction; Maintenance of Registry of
Existing Holders.....................................................3
2.3 Auction Schedule.....................................................5
2.4 Notice of Auction Results............................................5
2.5 Broker-Dealers.......................................................5
2.6 Ownership of Shares of APS and Submission of Bids by the Trust
and its Affiliates...................................................6
2.7 Access to and Maintenance of Auction Records.........................6
3. THE AUCTION AGENT AS PAYING AGENT.........................................7
3.1 The Paying Agent.....................................................7
3.2 The Trust's Notices to the Paying Agent..............................7
3.3 The Trust to Provide Funds for Dividends, Redemptions and
Additional Dividends.................................................7
3.4 Disbursing Dividends, Redemption Price and Additional Dividends......7
4. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR..........................8
4.1 Original Issue of Stock Certificates.................................8
4.2 Registration of Transfer or Exchange of Shares.......................8
4.3 Removal of Legend....................................................8
4.4 Lost, Stolen or Destroyed Stock Certificates.........................8
4.5 Disposition of Canceled Certificates; Record Retention...............9
4.6 Stock Register.......................................................9
4.7 Return of Funds......................................................9
5. REPRESENTATIONS AND WARRANTIES............................................9
5.1 Representations and Warranties of the Trust..........................9
5.2 Representations and Warranties of the Auction Agent.................10
6. THE AUCTION AGENT........................................................10
6.1 Duties and Responsibilities.........................................10
6.2 Rights of the Auction Agent.........................................11
6.3 Auction Agent's Disclaimer..........................................11
6.4 Compensation, Expenses and Indemnification..........................11
7. MISCELLANEOUS............................................................12
7.1 Term of Agreement...................................................12
7.2 Communications......................................................12
7.3 Entire Agreement....................................................13
7.4 Benefits............................................................13
7.5 Amendment; Waiver...................................................13
7.6 Successors and Assigns..............................................13
7.7 Severability........................................................13
7.8 Execution in Counterparts...........................................13
7.9 Governing Law.......................................................14
7.10 Limitation of Liability.............................................14
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THIS AUCTION AGENT AGREEMENT, dated as of June [__], 2001, is between
XXXXX XXXXX SENIOR INCOME TRUST, a Massachusetts business trust (the "Trust"),
and BANKERS TRUST COMPANY, a New York banking corporation.
The Trust proposes to issue 2,200 preferred shares of beneficial
interest, par value $.01 per share, liquidation preference $25,000 per share
designated Series A Auction Preferred Shares and 2,200 preferred shares of
beneficial interest, par value $.01 per share, liquidation preference $25,000
per share, designated Series B Auction Preferred Shares (collectively, with the
Series A Auction Preferred Shares, the "APS"), pursuant to the Trust's Amended
By-laws (as defined below). A separate Auction (as defined below) will be
conducted for each series of APS. The Trust desires that Bankers Trust Company
perform certain duties as the transfer agent, registrar, dividend disbursing
agent and redemption agent with respect to the shares of APS (in such capacity,
the "Paying Agent"), upon the terms and conditions of this Agreement, and the
Trust hereby appoints Bankers 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 the Amended By-laws.
Capitalized terms not defined herein shall have the respective meanings
specified in the Amended By-laws.
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:
(1) "Affiliate" shall mean any Person made known to the Auction Agent to be
controlled by, in control of, or under common control with, the Trust or its
successors.
(2) "Agent Member" of any Person shall mean such Person's agent member of
the Securities Depository that will act on behalf of a Bidder.
(3) "Amended By-laws" shall mean the Amended By-laws of the Trust,
establishing the powers, preferences and rights of the APS, as amended to the
date hereof.
(4) "Auction" shall have the meaning specified in Section 2.1 hereof.
(5) "Auction Procedures" shall mean the Auction Procedures that are set
forth in Part I, Section 19 of Article VII of the Amended By-laws.
(6) "Authorized Officer" shall mean each Managing Director, 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 Trust.
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(7) "Broker-Dealer Agreement" shall mean each agreement between the Auction
Agent and a Broker-Dealer substantially in the form attached hereto as Exhibit
A.
(8) "Holder" shall be a holder of record of one or more shares of APS,
listed as such in the stock register maintained by the Paying Agent pursuant to
Section 4.6 hereof.
(9) "Settlement Procedures" shall mean the Settlement Procedures attached
as Exhibit A to the Broker-Dealer Agreement.
(10) "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.
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:
(1) Words importing the singular number shall include the plural number and
vice versa.
(2) 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.
(3) The words "hereof," "herein," "hereto," and other words of similar
import refer to this Agreement as a whole.
(4) 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.
(1) The Amended By-laws provide that the Applicable Rate on shares of each
series of APS, as the case may be, for each Dividend Period therefore 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 Bankers 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 APS for the next Dividend
Period therefore. Each periodic operation of such procedures is hereinafter
referred to as an "Auction."
(2) All of the provisions contained in the Auction Procedures and in the
Settlement Procedures are incorporated herein by reference in their entirety and
shall be deemed to be a part hereof to the same extent as if such provisions
were set forth fully herein.
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2.2 Preparation for Each Auction; Maintenance of Registry of Existing Holders.
(1) Pursuant to Section 2.5 hereof, the Trust shall not designate any
Person to act as a Broker-Dealer without the prior written approval of the
Auction Agent (which approval shall not be withheld unreasonably). As of the
date hereof, the 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 APS. Not later than
five Business Days prior to any Auction Date for which any change in such list
of Broker-Dealers is to be effective, the 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.
(2) 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 [TO BE PROVIDED], the Auction
Agent, by such means as the Auction Agent deems practicable, shall give notice
of such change to the Broker-Dealers not later than the earlier of 9:15 A.M. on
the new Auction Date or 9:15 A.M. on the old Auction Date.
(3) The provisions contained in Part I, Section 4 of Article VII of the
Amended By-laws concerning Special Rate Periods and the notification of a
Special Rate Period will be followed by the Trust and, to the extent applicable,
the Auction Agent, and the provisions contained therein are incorporated herein
by reference in their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions were set forth fully herein.
(4) (i) On each Auction Date, the Auction Agent shall determine the
Reference Rate and the Maximum 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 Section 1 of
the Amended By-laws; or, if the rate obtained by the Auction Agent is not quoted
on an interest or discount basis, the Auction Agent shall convert the quoted
rate to an interest rate after consultation with the 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 of the Maximum Applicable Rate.
(ii) If the Reference Rate is the applicable "AA" Financial 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" Financial
Composite Commercial Paper Rate, such rate shall be determined on the basis of
the quotations (or quotation) furnished by the remaining Commercial Paper
Dealers (or Dealer), if any, or, if there are no such Commercial Paper Dealers,
by the Auction Agent. The Auction Agent immediately shall notify the Trust in
the event that any of the Commercial Paper Dealers and their respective
Affiliates or successors shall cease to quote rates for commercial paper of
issuers of the sort described in Article VII, Part II, Section 19 of the Amended
By-laws 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 promptly shall advise the Auction Agent of
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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.
(iii) If, after the date of this Agreement, there is any change in the
prevailing rating of APS by Moody's (or substitute or successor rating
agencies), thereby resulting in any change in the corresponding applicable
percentage for the APS, as set forth in the definition of Maximum Rate (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 APS next
succeeding such change. The Percentage for the APS on the date of this Agreement
is [___%]. 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
Rate as set forth in Part I, Section 2.2(c)(i) of Article VII of the Amended
By-laws.
(5) (i) The Auction Agent shall maintain a current registry of the Existing
Holders of the shares of each series of APS 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 Business Days following the date of the Closing a list
of the initial Existing Holders of APS, 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
APS to another Person.
(ii) In the event of any partial redemption of any series of APS, upon
notice by the Trust to the Auction Agent of such partial redemption, the Auction
Agent promptly shall request the Securities Depository to notify the Auction
Agent of the identities of the Agent Members (and the respective numbers of
shares) from the accounts of which shares have been called for redemption and
the person or department at such Agent Member to contact regarding such
redemption, and at least two Business Days prior to the Auction preceding the
date of redemption, 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
the applicable series of APS of each such Existing Holder, if any, to be
redeemed by the Trust, provided that the Auction Agent has been furnished with
the name and telephone number of a person or department at such Agent Member
from which it is to request such information. In the absence of receiving any
such information with respect to an Existing Holder, from such Existing Holder's
Agent Member or otherwise, the Auction Agent may continue to treat such Existing
Holder as having ownership of the number of shares of the series of APS shown in
the Auction Agent's registry of Existing Holders.
(iii) The Auction Agent shall register a transfer of the ownership of
shares of a series of APS from an Existing Holder to another Existing Holder, or
to another Person if permitted by the Trust, only if (A) such transfer is made
pursuant to an Auction or (B) if such transfer is made other than pursuant to an
Auction, the Auction Agent has been notified of such transfer in writing in a
notice substantially in the form of Exhibit C to the Broker-Dealer Agreements,
by such Existing Holder or by the Agent Member of such Existing Holder. The
Auction Agent is not required to accept any notice of transfer delivered for an
Auction unless it is received by the Auction Agent by 3:00 P.M. on the Business
Day next preceding the applicable Auction Date. The Auction Agent shall rescind
a transfer made on the registry of the Existing Holders of any shares of a
series of APS if the Auction Agent has been notified in writing, in a notice
substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the
Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of
a series of APS and the seller failed to deliver such shares or (ii) sold any
shares of a series of APS and the purchaser failed to make payment to such
Person upon delivery to the purchaser of such shares.
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(6) The Auction Agent may request that the Broker Dealers, as set forth in
Section 3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a
list of their respective customers that such Broker-Dealers believe are
Beneficial Owners of shares of APS. 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.
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 withheld unreasonably. The
Auction Agent shall give notice of any such change to each Broker-Dealer. Such
notice shall be received prior to the first Auction Date on which any such
change shall be effective.
Time Event
---- -----
By 9:30 A.M. Auction Agent advises the Trust and the Broker-Dealers of
the Reference Rate and the Maximum Rate as set forth in
Section 2.2(4) hereof.
9:30 A.M. -
1:30 P.M. Auction Agent assembles information communicated to it by
Broker-Dealers as provided in Part II, Section 3(a) of
Article VII of the Amended By-laws. Submission deadline is
1:00 P.M.
Not earlier than
1:30 P.M. Auction Agent makes determinations pursuant to Part II,
Sections 3-5 of Article VII of the Amended By-laws.
By approximately
3:00 P.M. Auction Agent advises the Trust of the results of the
Auction as provided in Part II, Section 4(b) of Article VII
of the Amended By-laws.
Submitted Bids and Submitted Sell Orders are accepted and
rejected in whole or in part and shares of APS allocated as
provided in Part II, Section 5 of Article VII of the Amended
By-laws.
Auction Agent gives notice of the Auction results as set
forth in Section 2.4 hereof.
2.4 Notice of Auction Results.
On each Auction Date, the Auction Agent shall notify Broker-Dealers of the
results of the Auction held on such date by telephone or through the Auction
Agent's Auction Processing System as set forth in Paragraph (a) of the
Settlement Procedures.
2.5 Broker-Dealers.
(1) Not later than 12:00 noon on each Auction Date, the Trust shall pay to
the Auction Agent in Federal Funds or similar same-day funds an amount in cash
equal to (i) in the case of any Auction Date immediately preceding a 7-Day
Dividend Period, 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
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which is 360, times (B) 1/4 of 1%, times (C) $25,000 times (D) the sum of the
aggregate number of outstanding shares of APS for which the Auction is conducted
and (ii) in the case of any Special Rate Period, the amount determined by mutual
consent of the Trust and the Broker-Dealers pursuant to Section 3.5 of the
Broker-Dealer Agreements. The Auction Agent shall apply such moneys as set forth
in Section 3.5 of the Broker-Dealer Agreements and shall thereafter remit to the
Trust any remaining funds paid to the Auction Agent pursuant to this Section
2.5(a).
(2) The Trust shall not designate any Person to act as a Broker-Dealer, or
permit a Existing Holder or a Potential Beneficial Owner to participate in
Auctions through any Person other than a Broker-Dealer, without the prior
written approval of the Auction Agent, which approval shall not be withheld
unreasonably. The Trust may designate an Affiliate or [UBS WARBURG LLC] to act
as a Broker-Dealer.
(3) The Auction Agent shall terminate any Broker-Dealer Agreement as set
forth therein if so directed by the Trust.
(4) Subject to Section 2.5(2) hereof, the Auction Agent from time to time
shall enter into such Broker-Dealer Agreements, as the Trust shall request.
(5) The Auction Agent shall maintain a list of Broker-Dealers.
2.6 Ownership of Shares of APS and Submission of Bids by the Trust and its
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 a
Beneficial Owner or a Potential Beneficial Owner. 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 a Beneficial Owner of any shares of a series of
APS. Any shares of APS redeemed, purchased or otherwise acquired (i) by the
Trust shall not be reissued, except in accordance with the requirements of the
Securities Act of 1933, as amended, or (ii) by its Affiliates shall not be
transferred (other than to the 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 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, in
reasonable detail, shall accurately and fairly reflect the actions taken by the
Auction Agent hereunder. The Trust agrees to keep confidential any information
regarding the customers of any Broker-Dealer received from the Auction Agent in
connection with this Agreement or any Auction, and shall not disclose such
information or permit the disclosure of such information without the prior
written consent of the applicable Broker-Dealer to anyone except such agent,
accountant or counsel engaged to audit or review the results of Auctions as
permitted by this Section 2.7, provided that the Trust reserves the right to
disclose any such information if it is advised by its counsel that its failure
to do so would (i) be unlawful or (ii) expose it to liability, unless the
Broker-Dealer shall have offered indemnification satisfactory to the Trust. Any
such agent, accountant or counsel, before having access to such information,
shall agree to keep such information confidential and not to disclose such
information or permit disclosure of such information without the prior written
consent of the applicable Broker-Dealer, provided that such agent, accountant or
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counsel may reserve the right to disclose any such information if it is advised
by its counsel that its failure to do so would (i) be unlawful or (ii) expose it
to liability, unless the Broker-Dealer shall have offered indemnification
satisfactory to such agent, accountant or counsel.
3. THE AUCTION AGENT AS PAYING AGENT.
3.1 The Paying Agent.
The Board of Trustees of the Trust has adopted a resolution appointing
Bankers Trust Company as transfer agent, registrar, dividend disbursing agent
and redemption agent for the Trust in connection with any shares of APS (in such
capacity, the "Paying Agent"). The Paying Agent hereby accepts such appointment
and agrees to act in accordance with its standard procedures and the provisions
of the Amended By-laws which are specified herein with respect to the shares of
APS and as set forth in this Section 3.
3.2 The Trust's Notices to the Paying Agent.
Whenever any shares of APS are to be redeemed, the Trust promptly shall
deliver to the Paying Agent a Notice of Redemption, which will be mailed by the
Trust to each Holder at least five Business Days prior to the date such Notice
of Redemption is required to be mailed pursuant to the Amended By-laws. The
Paying Agent shall have no responsibility to confirm or verify the accuracy of
any such Notice.
3.3 The Trust to Provide Funds for Dividends, Redemptions and Additional
Dividends.
(1) Not later than noon on each Dividend Payment Date, the Trust shall
deposit with the Paying Agent an aggregate amount of Federal Funds or similar
same-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.
(2) If the Trust shall give a Notice of Redemption, then by noon of the
date fixed for redemption, the Trust shall deposit in trust with the Paying
Agent an aggregate amount of Federal Funds or similar same-day funds sufficient
to redeem such shares of APS called for redemption and shall give the Paying
Agent irrevocable instructions and authority to pay the redemption price to the
Holders of shares of APS called for redemption upon surrender of the certificate
or certificates therefore.
3.4 Disbursing Dividends, Redemption Price and Additional Dividends
After receipt of the Federal Funds or similar same-day funds and
instructions from the Trust described in Sections 3.3(a) and (b) above, the
Paying Agent shall pay to the Holders (or former Holders) entitled thereto (i)
on each corresponding Dividend Payment Date, dividends on the shares of APS,
(ii) on any date fixed for redemption, the redemption price of any shares of APS
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 Part I, Section 2 of the Amended By-laws. The redemption price
to be paid by the Paying Agent to the Holders of any shares of APS called for
redemption will be determined as set forth in Section 4 of the Amended By-laws.
The Trust shall notify the Paying Agent in writing of a decision to redeem any
shares of APS 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 a 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 a Notice of Redemption.
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4. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
4.1 Original Issue of Stock Certificates.
On the Date of Original Issue for any share of APS, one certificate for
each series, if any, of APS 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. The Trust will give the Auction Agent prior written notice
and instruction as to the issuance and redemption of APS.
4.2 Registration of Transfer or Exchange of Shares.
Except as provided in this Section 4.2, the shares of each series of APS,
if any, 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 each series of APS, if any, at the Trust's
request, may be registered for transfer or exchange, and new certificates
thereupon shall be issued in the name of the designated transferee or
transferees, upon surrender of the old certificate in form deemed by the Paying
Agent properly endorsed for transfer with (a) all necessary endorsers'
signatures guaranteed in such manner and form as the Paying Agent may require by
a guarantor reasonably believed by the Paying Agent to be responsible, (b) such
assurances as the Paying Agent shall deem necessary or appropriate to evidence
the genuineness and effectiveness of each necessary endorsement and (c)
satisfactory evidence of compliance with all applicable laws relating to the
collection of taxes in connection with any registration of transfer or exchange
or funds necessary for the payment of such taxes. If the certificate or
certificates for shares of APS are not held by the Securities Depository or its
nominee, payments upon transfer of shares in an Auction shall be made in Federal
Funds or similar same-day funds to the Auction Agent against delivery of
certificates therefore.
4.3 Removal of Legend.
Any request for removal of a legend indicating a restriction on transfer
from a certificate evidencing shares of APS shall be accompanied by an opinion
of counsel stating that such legend may be removed and such shares may be
transferred free of the restriction described in such legend, said opinion to be
delivered under cover of a letter from a Trust Officer authorizing the Paying
Agent to remove the legend on the basis of said opinion.
4.4 Lost, Stolen or Destroyed Stock Certificates.
The Paying Agent shall issue and register replacement certificates for
certificates represented to have been lost, stolen or destroyed, upon the
fulfillment of such requirements as shall be deemed appropriate by the Trust and
by the Paying Agent, subject at all times to provisions of law, the Amended
By-Laws of the Trust governing such matters and resolutions adopted by the Trust
with respect to lost, stolen or destroyed securities. The Paying Agent may issue
new certificates in exchange for and upon the cancellation of mutilated
certificates. Any request by the 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 provisions of applicable law and the By-Laws and
resolutions of the Trust.
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4.5 Disposition of Canceled Certificates; Record Retention.
The Paying Agent shall retain stock certificates which have been canceled
in transfer or in exchange and accompanying documentation in accordance with
applicable rules and regulations of the Securities and Exchange Commission for
two calendar years from the date of such cancellation. The Paying Agent, upon
written request by the Trust, shall 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 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 canceled certificates and accompanying documentation. The Trust, at its
expense, shall retain such records for a minimum additional period of four
calendar years from the date of delivery of the records to the 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 also shall undertake to
furnish to the Securities and Exchange Commission, upon demand, either at their
principal office or at any regional office, complete, correct and current hard
copies of any and all such records. Thereafter, such records shall not be
destroyed by the Trust without the approval of the Paying Agent, which approval
shall not be withheld unreasonably, but will be safely stored for possible
future reference.
4.6 Stock Register.
The Paying Agent shall maintain the stock register, which shall contain a
list of the Holders, the number of shares held by each Holder and the address of
each Holder. The Paying Agent shall record in the stock register any change of
address of a Holder upon notice by such Holder. In case of any written request
or demand for the inspection of the stock register or any other books of the
Trust in the possession of the Paying Agent, the 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 APS,
that remain with the Paying Agent after 12 months shall be repaid to the Trust
upon written request by the Trust.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties of the Trust.
The Trust represents and warrants to the Auction Agent that:
(1) the Trust is duly organized and is validly existing as a business trust
in good standing 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 each series of APS;
(2) 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;
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(3) 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;
(4) the forms of the certificates evidencing the shares of APS comply with
all applicable laws of The Commonwealth of Massachusetts;
(5) the shares of APS have been duly and validly authorized by the Trust
and, upon completion of the initial sale of the shares of APS and receipt of
payment therefore, will be validly issued, fully paid and nonassessable;
(6) at the time of the offering of the shares of APS, the shares offered
will be registered under the Securities Act of 1933, as amended, and no further
action by or before any governmental body or authority of the United States or
of any state thereof is required in connection with the execution and delivery
of this Agreement or will be required in connection with the issuance of the
shares of APS, except such action as required by applicable state securities
laws, all of which action will have been taken;
(7) the execution and delivery of this Agreement and the issuance and
delivery of the shares of each series of APS 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 Amended 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
(8) no taxes are payable upon or in respect of the execution of this
Agreement or will be payable upon or in respect of the issuance of the shares of
each series of APS.
5.2 Representations and Warranties of the Auction Agent.
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.
(1) 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.
(2) The Auction Agent undertakes to perform such duties and only such
duties as are set forth specifically in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Auction Agent.
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(3) In the absence of bad faith or negligence on its part, the Auction
Agent shall not be liable for any action taken, suffered or omitted by it or for
any error of judgment made by it in the performance of its duties under this
Agreement. The Auction Agent shall not be liable for any error of judgment made
in good faith unless the Auction Agent shall have been negligent in ascertaining
(or failing to ascertain) the pertinent facts.
6.2 Rights of the Auction Agent.
(1) The Auction Agent may rely upon, and shall be protected in acting or
refraining from acting upon, any communication authorized hereby and any written
instruction, notice, request, direction, consent, report, certificate, share
certificate or other instrument, paper or document reasonably believed by it to
be genuine. The Auction Agent shall not be liable for acting upon any telephone
communication authorized hereby which the Auction Agent believes in good faith
to have been given by the Trust or by a Broker-Dealer. The Auction Agent may
record telephone communications with the Trust or with the Broker-Dealers or
with both.
(2) 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.
(3) 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.
(4) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys.
6.3 Auction Agent's Disclaimer.
The Auction Agent makes no representation as to the validity or the
adequacy of this Agreement, the Broker-Dealer Agreements or the APS.
6.4 Compensation, Expenses and Indemnification.
(1) The Trust shall pay to the Auction Agent from time to time reasonable
compensation for all services rendered by it under this Agreement and under the
Broker-Dealer Agreements as shall be set forth in a separate writing signed by
the Trust and the Auction Agent, subject to adjustments if the APS no longer are
held of record by the Securities Depository or its nominee or if there shall be
such other change as shall increase materially the Auction Agent's obligations
hereunder or under the Broker-Dealer Agreements.
(2) 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 of the
Broker-Dealer Agreements (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any expense, disbursement or
advance attributable to its negligence or bad faith.
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(3) 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 under the Broker-Dealer Agreements, including the costs and expenses of
defending itself against any claim of liability in connection with its exercise
or performance of any of its duties hereunder and thereunder, except such as may
result from its negligence or bad faith.
7. MISCELLANEOUS.
7.1 Term of Agreement.
(1) 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 APS remain
outstanding the Trust shall have entered into an agreement in substantially the
form of this Agreement with a successor auction agent. The Auction Agent may
terminate this Agreement upon prior notice to the Trust on the date specified in
such notice, which date shall be no earlier than 60 days after delivery of such
notice. If the Auction Agent resigns while any shares of APS remain outstanding,
the Trust shall use its best efforts to enter into an agreement with a successor
auction agent containing substantially the same terms and conditions as this
Agreement.
(2) Except as otherwise provided in this Section 7.1(2), 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, deliver promptly 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, transfer promptly to
the Trust or to any successor auction agent any funds deposited by the Trust
with the Auction Agent (whether in its capacity as Auction Agent or as Paying
Agent) pursuant to this Agreement which have not been distributed previously by
the Auction Agent in accordance with this Agreement.
7.2 Communications.
Except for (i) communications authorized to be made by telephone pursuant
to this Agreement or the Auction Procedures and (ii) communications in
connection with Auctions (other than those expressly required to be in writing),
all notices, requests and other communications to any party hereunder shall be
in writing (including telecopy or similar writing) and shall be given to such
party at its address or telecopier number set forth below:
Xxxxx Xxxxx Senior Income Trust
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
If to the Trust, Attention: Treasurer
addressed to: Telephone No.: (000) 000-0000
If to the Auction Agent, Bankers Trust Company
addressed to: Corporate Trust and Agency Group
Four Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Auction Rate Securities
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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or such other address or telecopier number as such party hereafter may specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the 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.
(1) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. The Trust shall notify the Auction Agent of any change in the Amended
By-laws prior to the effective date of any such change. If any such change in
the Amended By-laws materially increases the Auction Agent's obligations
hereunder, the Trust shall obtain the written consent to the Auction Agent prior
to the effective date of such change.
(2) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
7.6 Successors and Assigns.
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and permitted assigns of each of the
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 withheld unreasonably.
7.7 Severability.
If any clause, provision or section hereof shall be ruled invalid or
unenforceable by any court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
7.8 Execution in Counterparts.
This Agreement may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
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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 Limitation of Liability.
The names "Xxxxx Xxxxx Senior Income Trust" and "Trustees of the Xxxxx
Xxxxx Senior Income Trust" refer, respectively, to the Trust and the Trustees of
the Trust, as trustees but not individually or personally, acting from time to
time under the Trust's Agreement and Declaration of Trust dated September 23,
1998, as amended, which is hereby referred to and a copy of which is on file at
the office of the Secretary of The Commonwealth of Massachusetts and the
principal office of the Trust. The obligations of "Xxxxx Xxxxx Senior Income
Trust" entered into in the name or on behalf thereof by any of the Trustees,
representatives or agents of the Trust are made not individually, but in such
capacities, and are not binding upon any of the Trustees, officers, holders of
shares of beneficial interest of the Trust or representatives of the Trustees
personally, but bind only the Trust assets, and all persons dealing with the
Trust must look solely to the Trust property for the enforcement of any claims
against the Trust.
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.
XXXXX XXXXX SENIOR INCOME TRUST
By:
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Title:
BANKERS TRUST COMPANY
By:
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Title:
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