Exhibit (k)(4)
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AUCTION AGENT AGREEMENT
between
MUNI INTERMEDIATE DURATION FUND, INC.
and
THE BANK OF NEW YORK
Dated as of [__], 2005
Relating to
AUCTION MARKET PREFERRED STOCK
("AMPS"),
Series [ ]28
of
MUNI INTERMEDIATE DURATION FUND, INC.
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THIS AUCTION AGENT AGREEMENT, dated as of [__], 2005, is between MUNI
INTERMEDIATE DURATION FUND, INC., a Maryland corporation (the "Company"), and
THE BANK OF NEW YORK, a New York banking corporation.
The Company proposes to duly authorize and issue 1,400 shares of
Auction Market Preferred Stock, Series [ ]28 ("Series [ ]28 AMPS") with a par
value of $.10 per share and a liquidation preference of $25,000 per share plus
an amount equal to accumulated but unpaid dividends (whether or not earned or
declared), pursuant to the Company's Articles Supplementary (as defined below).
The Series [ ]28 AMPS are sometimes referred to as the "AMPS." A separate
Auction (as defined below) will be conducted for the AMPS. The Company desires
that The Bank of New York perform certain duties as agent in connection with
each Auction of shares of AMPS (in such capacity, the "Auction Agent"), and as
the transfer agent, registrar, dividend disbursing agent and redemption agent
with respect to the shares of AMPS (in such capacity, the "Paying Agent"), upon
the terms and conditions of this Agreement, and the Company hereby appoints The
Bank of New York as said Auction Agent and Paying Agent in accordance with those
terms and conditions (hereinafter generally referred to as the "Auction Agent,"
except in Sections 3 and 4 below).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company and the Auction Agent agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1. Terms Defined by Reference to Articles Supplementary.
Capitalized terms not defined herein shall have the respective meanings
specified in the Articles Supplementary.
1.2. Terms Defined Herein.
As used herein and in the Settlement Procedures (as defined below), the
following terms shall have the following meanings, unless the context otherwise
requires:
(a) "Affiliate" shall mean any Person, other xxxx Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, made known to the
Auction Agent to be controlled by, in control of, or under
common control with, the Company or its successors.
(b) "Agent Member" of any Person shall mean such Person's
agent member of the Securities Depository that will act on
behalf of a Bidder.
(c) "Articles Supplementary" shall mean the Articles
Supplementary of the Company, establishing the powers,
preferences and rights of the AMPS, filed on [__], 2005 with
the state of Maryland.
(d) "Auction" shall have the meaning specified in Section 2.1
hereof.
(e) "Auction Agent Acceptance Fee" means an acceptance fee as
set forth in a written agreement between the Auction Agent and
the Company.
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(f) "Auction Agent Fee" means the fees, other than the Auction
Agent Acceptance Fee, set forth in a written agreement signed
by the Auction Agent and the Company.
(g) "Auction Procedures" shall mean the Auction Procedures
that are set forth in Paragraph 10 of the Articles
Supplementary.
(h) "Authorized Officer" shall mean each Vice President,
Assistant Vice President, and Assistant Treasurer of the
Auction Agent assigned to the Dealing and Trading Group of its
Corporate Trust Department, and every other officer or
employee of the Auction Agent designated as an "Authorized
Officer" for purposes hereof in a written communication to the
Company.
(i) "Broker-Dealer Agreement" shall mean each agreement
between the Auction Agent and a Broker-Dealer substantially in
the form attached hereto as Exhibit A.
(j) "Company Officer" shall mean the Chairman and Chief
Executive Officer, the President, each Vice President (whether
or not designated by a number or word or words added before or
after the title "Vice President"), the Secretary, the
Treasurer, each Assistant Secretary and each Assistant
Treasurer of the Company and every other officer or employee
of the Company designated as a "Company Officer" for purposes
hereof in a written notice from the Company to the Auction
Agent.
(k) "Holder" shall be a holder of record of one or more
shares of AMPS, listed as such in the stock register maintained
by the Paying Agent pursuant to Section 4.6 hereof.
(l) "Settlement Procedures" shall mean the Settlement
Procedures attached as Exhibit A to the Broker-Dealer
Agreement.
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.
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(d) All references herein to a particular time of day shall be
to Eastern Standard Time.
II. THE AUCTION.
2.1. Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) The Articles Supplementary provide that the Applicable
Rate on shares of Series [ ]28 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 Company advises results
from implementation of the Auction Procedures. The Board of
Directors of the Company has adopted a resolution appointing
The Bank of New York as Auction Agent for purposes of the
Auction Procedures. The Auction Agent hereby accepts such
appointment and agrees that, on each Auction Date, it shall
follow the procedures set forth in this Section 2 and the
Auction Procedures for the purpose of determining the
Applicable Rate for the AMPS for the next Dividend Period
therefor. Each periodic operation of such procedures is
hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures
and in the Settlement Procedures are incorporated herein by
reference in their entirety and shall be deemed to be a part
hereof to the same extent as if such provisions were set forth
fully herein. In the case of any conflict between the terms of
any document incorporated herein by reference and the terms
hereof, the Auction Agent is, subject to its obligations as
set forth in Section 6.1, authorized to perform its duties
according to the terms hereof, and shall have no liability for
so doing.
2.2. Preparation for Each Auction; Maintenance of Registry of
Existing Holders.
(a) As of the date hereof, the Company shall provide the
Auction Agent with a list of the Broker-Dealers 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 a list of
Broker-Dealers with whom it has signed such Broker-Dealer
Agreements, and shall endeavor to keep such list current and
accurate and shall indicate thereon, or on a separate list,
the identity of each Existing Holder, if any, whose most
recent Order was submitted by a Broker-Dealer on such list and
resulted in such Existing Holder continuing to hold or
purchasing shares of AMPS. Not later than five Business Days
prior to any Auction Date for which any change in such list of
Broker-Dealers is to be effective, the Company shall notify
the Auction Agent in writing of such change and, if any such
change is the addition of a Broker-Dealer to such list, the
Company shall cause to be delivered to the Auction Agent for
execution by the Auction Agent a Broker-Dealer Agreement
signed by such Broker-Dealer. The
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Auction Agent shall have entered into a Broker-Dealer
Agreement with each Broker-Dealer prior to the participation
of any such Broker-Dealer in any Auction.
(b) In the event that the Auction Date for any Auction shall
be changed after the Auction Agent shall have given the notice
referred to in clause (vii) of Paragraph (a) of the Settlement
Procedures, the Auction Agent, by such means as the Auction
Agent deems practicable, shall give notice of such change to
the Broker-Dealers not later than the earlier of 9:15 A.M. on
the new Auction Date or 9:15 A.M. on the old Auction Date.
(c) The provisions contained in paragraph 2 of the Articles
Supplementary concerning Special Dividend Periods and the
notification of a Special Dividend Period will be followed by
the Company and, to the extent applicable, the Auction Agent,
and the provisions contained therein are incorporated herein
by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such
provisions were set forth fully herein.
(d) (i) On each Auction Date, the Auction Agent shall
determine the Reference Rate and the Maximum Applicable Rate.
If the rate obtained by the Auction Agent is not quoted on an
interest or discount basis, the Auction Agent shall convert
the quoted rate to an interest rate after consultation with
the Company as to the method of such conversion. Not later
than 9:30 A.M. on each Auction Date, the Auction Agent shall
notify the Company and the Broker-Dealers of the Reference
Rate so determined and of the Maximum Applicable Rate.
(ii) If the Reference Rate is the applicable LIBOR Rate and
such rate is to be based on rates supplied by LIBOR Dealers
and one or more of the LIBOR Dealers shall not provide a
quotation for the determination of the applicable LIBOR Rate,
the Auction Agent promptly shall notify the Company so that
the Company can determine whether to select a Substitute LIBOR
Dealer or Substitute LIBOR Dealers to provide the quotation or
quotations not being supplied by any LIBOR Dealer or LIBOR
Dealers. The Company promptly shall advise the Auction Agent
of any such selection. If the Company does not select any such
Substitute LIBOR Dealer or Substitute LIBOR Dealers, then the
rates shall be supplied by the remaining LIBOR Dealer or LIBOR
Dealers.
(iii) If, after the date of this Agreement, there is any
change in the prevailing rating of AMPS by either of the
rating agencies (or Substitute Rating Agency or successor
rating agency) referred to in the definition of the Maximum
Applicable Rate, subject to the provisions of paragraph 12 of
the Articles Supplementary, thereby resulting in any change in
the corresponding applicable percentage or corresponding
applicable spread for the AMPS, as set forth in said
definition (the "Percentage or Spread"), the Company shall
notify the Auction Agent in writing of such change in the
Percentage or Spread prior to 9:00 A.M. on the Auction Date
for AMPS next succeeding such change. The Percentage or
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Spread for the AMPS on the date of this Agreement is as
specified in paragraph 10(a)(vii) of the Articles
Supplementary. The Auction Agent shall be entitled to
conclusively rely on the last Percentage or Spread of which it
has received notice from the Company (or, in the absence of
such notice, the Percentage or Spread set forth in the
preceding sentence) in determining the Maximum Applicable Rate
as set forth in Section 2.2(d)(i) hereof.
(e) The Auction Agent shall maintain a current registry of the
Existing Holders of the shares of AMPS for purposes of each
Auction. The Company 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 AMPS, and the Broker-Dealer of each such
Existing Holder through which such Existing Holder purchased
such shares. The Auction Agent may conclusively 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.
(f) In the event of any partial redemption of AMPS, upon
notice by the Company to the Auction Agent of such partial
redemption, the Auction Agent promptly shall request the
Securities Depository to notify the Auction Agent of the
identities of the Agent Members (and the respective numbers of
shares) from the accounts of which shares have been called for
redemption and the person or department at such Agent Member
to contact regarding such redemption, and at least two
Business Days prior to the Auction preceding the date of
redemption with respect to shares of AMPS 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 Company,
provided that the Auction Agent has been furnished with the
name and telephone number of a person or department at such
Agent Member from which it is to request such information. In
the absence of receiving any such information with respect to
an Existing Holder, from such Existing Holder's Agent Member
or otherwise, the Auction Agent may continue to treat such
Existing Holder as having ownership of the number of shares of
AMPS shown in the Auction Agent's registry of Existing
Holders.
(i) The Auction Agent shall register a transfer of the
ownership of shares of AMPS from an Existing Holder to another
Existing Holder, or to another Person if permitted by the
Company, only if (A) such transfer is made pursuant to an
Auction or (B) if such transfer is made other than pursuant to
an Auction, the Auction Agent has been notified of such
transfer in writing in a notice substantially in the form of
Exhibit C to the Broker-Dealer Agreements, by such Existing
Holder or by the Agent Member of such Existing Holder. The
Auction Agent is not required to accept any notice of transfer
delivered for an Auction unless it is received by the Auction
Agent by 3:00 P.M. on the Business Day next
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preceding the applicable Auction Date. The Auction Agent shall
rescind a transfer made on the registry of the Existing
Holders of any shares of AMPS if the Auction Agent has been
notified in writing, in a notice substantially in the form of
Exhibit D to the Broker-Dealer Agreement, by the Agent Member
or the Broker-Dealer of any Person that (i) purchased any
shares of AMPS and the seller failed to deliver such shares or
(ii) sold any shares of AMPS and the purchaser failed to make
payment to such Person upon delivery to the purchaser of such
shares.
(g) The Auction Agent may, but shall not be obligated, to
request that the Broker-Dealers, as set forth in Section
3.2(c) of the Broker-Dealer Agreements, provide the Auction
Agent with a list of their respective customers that such
Broker-Dealers believe are Beneficial Owners of shares of
AMPS. The Auction Agent shall keep confidential any such
information and shall not disclose any such information so
provided to any Person other than the relevant Broker-Dealer
and the Company; provided, however, that the Auction Agent
reserves the right and is authorized to disclose any such
information if (i) it is ordered to do so by a court of
competent jurisdiction or a regulatory body, judicial or
quasi-judicial agency or authority having the authority to
compel such disclosure, (ii) it is advised by its counsel that
its failure to do so would be unlawful or (iii) failure to do
so would expose the Auction Agent to loss, liability, claim,
damage or expense for which it has not received indemnity or
security satisfactory to it.
2.3. Auction Schedule.
The Auction Agent shall conduct Auctions in accordance with the
schedule set forth below. Such schedule may be changed by the Auction Agent with
the consent of the Company, which consent shall not be withheld unreasonably.
The Auction Agent shall give notice of any such change to each Broker-Dealer.
Such notice shall be received prior to the first Auction Date on which any such
change shall be effective. The Auction Agent will follow The Bond Market
Association's Market Practice U.S. Holiday Recommendations for shortened trading
days for bond markets (the "BMA Recommendation") unless the Auction Agent is
instructed otherwise by the Company. In the event of a BMA Recommendation on an
Auction Date, the Submission Deadline will be 11:30 A.M. instead of 1:00 P.M.
and as a result the notice of Auction results will occur at an earlier time.
Time Event
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By 9:30 A.M. Auction Agent advises the Company and
the Broker-Dealers of the Reference Rate
and the Maximum Applicable Rate as set
forth in Section 2.2(d)(i) hereof.
9:30 A.M. - 1:00 P.M. Auction Agent assembles information
communicated to it by Broker-Dealers as
provided in Paragraph 10(c)(i) of the
Articles Supplementary. Submission
deadline is 1:00 P.M.
Not earlier than 1:00 P.M. Auction Agent makes determinations
pursuant to Paragraph 10(d)(i) of
the Articles Supplementary.
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By approximately Auction Agent advises the Company of the
3:00 P.M. results of the Auction as provided in
Paragraph 10(d)(ii) of the Articles
Supplementary.
Submitted Bids and Submitted Sell
Orders are accepted and rejected in
whole or in part and shares of AMPS
allocated as provided in Paragraph
10(e) of the Articles Supplementary.
Auction Agent gives notice of the
Auction results as set forth in Section
2.4 hereof.
2.4. Notice of Auction Results.
On each Auction Date, the Auction Agent shall notify Broker-Dealers of
the results of the Auction held on such date by telephone or other mutually
acceptable electronic means as set forth in Paragraph (a) of the Settlement
Procedures. Unless instructed otherwise in writing by the Company, the Auction
Agent is authorized to release the Applicable Rate determined as a result of the
Auction for public dissemination.
2.5. Broker-Dealers.
(a) Not later than 12:00 noon on each Auction Date, the
Company shall pay to the Auction Agent in Federal Funds or
similar same-day funds an amount in cash equal to (i) in the
case of any Auction Date immediately preceding a 28-Day
Dividend Period, the product of (A) a fraction the numerator
of which is the number of days in such Dividend Period
(calculated by counting the first day of such Dividend Period
but excluding the last day thereof) and the denominator of
which is 360, times (B) 1/4 of 1%, times (C) $25,000 times (D)
the sum of the aggregate number of Outstanding shares of AMPS
and (ii) in the case of any Special Dividend Period, the
amount determined by mutual consent of the Company and the
Broker-Dealers pursuant to Section 3.5 of the Broker-Dealer
Agreements. The Auction Agent shall apply such moneys as set
forth in Section 3.5 of the Broker-Dealer Agreements and shall
thereafter remit to the Company any remaining funds paid to
the Auction Agent pursuant to this Section 2.5(a).
(b) The Company may designate an Affiliate or Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated to act as a Broker-Dealer.
(c) The Auction Agent shall terminate any Broker-Dealer
Agreement as set forth therein if so directed by the Company.
(d) Subject to Section 2.5(b) hereof, the Auction Agent from
time to time shall enter into such Broker-Dealer Agreements as
the Company shall request.
(e) Subject to Section 2.2(a), the Auction Agent shall
maintain a list of Broker-Dealers.
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2.6. Ownership of Shares of AMPS and Submission of Bids
by the Company and its Affiliates.
Neither the Company nor any Affiliate of the Company may submit any
Sell Order or Bid, directly or indirectly, in any Auction, except that an
Affiliate of the Company that is a Broker-Dealer may submit a Sell Order or Bid
on behalf of a Beneficial Owner or a Potential Beneficial Owner. The Company
shall notify the Auction Agent if the Company or, to the best of the Company's
knowledge, any Affiliate of the Company becomes a Beneficial Owner of any shares
of AMPS. Any shares of AMPS redeemed, purchased or otherwise acquired (i) by the
Company shall not be reissued, except in accordance with the requirements of the
Securities Act of 1933, as amended, or (ii) by its Affiliates shall not be
transferred (other than to the Company). The Auction Agent shall have no duty or
liability with respect to enforcement of this Section 2.6.
2.7. Access to and Maintenance of Auction Records.
The Auction Agent shall afford to the Company, its agents, independent
registered public accounting firm and counsel, access at reasonable times during
normal business hours to review and make extracts or copies (at the Company's
sole cost and expense) of all books, records, documents and other information
concerning the conduct and results of Auctions, provided that any such agent,
accounting firm or counsel shall furnish the Auction Agent with a letter from
the Company requesting that the Auction Agent afford such person access. The
Auction Agent shall maintain records relating to any Auction for a period of two
years after such Auction (unless requested by the Company to maintain such
records for such longer period not in excess of four years, then for such longer
period which shall not be in excess of four years), and such records, in
reasonable detail, shall accurately and fairly reflect the actions taken by the
Auction Agent hereunder. The Company agrees to keep confidential any information
regarding the customers of any Broker-Dealer received from the Auction Agent in
connection with this Agreement or any Auction, and shall not disclose such
information or permit the disclosure of such information without the prior
written consent of the applicable Broker-Dealer to anyone except such agent,
accounting firm or counsel engaged to audit or review the results of Auctions as
permitted by this Section 2.7, provided that the Company reserves the right to
disclose any such information if it is advised by its counsel that its failure
to do so would (i) be unlawful or (ii) expose it to liability, unless the
Broker-Dealer shall have offered indemnification satisfactory to the Company.
Any such agent, accounting firm 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,
accounting firm or counsel may reserve the right to disclose any such
information if it is advised by its counsel that its failure to do so would (i)
be unlawful or (ii) expose it to liability, unless the Broker-Dealer shall have
offered indemnification satisfactory to such agent, accountant or counsel. The
Auction Agent shall have no liability in connection with allowing access to the
Company's books, records, documents and other information pursuant to the terms
of this Section 2.7 to the Company, its agents, independent public accountants
and counsel.
III. THE AUCTION AGENT AS PAYING AGENT.
3.1. The Paying Agent.
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The Board of Directors of the Company has adopted a resolution
appointing The Bank of New York as transfer agent, registrar, dividend
disbursing agent and redemption agent for the Company in connection with any
shares of AMPS (in such capacity, the "Paying Agent"). The Paying Agent hereby
accepts such appointment and agrees to act in accordance with its standard
procedures and the provisions of the Articles Supplementary which are specified
herein with respect to the shares of AMPS and as set forth in this Section 3.
3.2. The Company's Notices to the Paying Agent.
Whenever any shares of AMPS are to be redeemed, the Company promptly
shall deliver to the Paying Agent a Notice of Redemption upon the terms set
forth in Section 4(c) of the Articles Supplementary, which will be mailed by the
Company to each Holder at least five Business Days prior to the date such Notice
of Redemption is required to be mailed pursuant to the Articles Supplementary.
The Paying Agent shall have no responsibility to confirm or verify the accuracy
of any such Notice.
3.3. The Company to Provide Funds for Dividends and Redemptions.
(a) Not later than noon on each Dividend Payment Date, the
Company shall deposit with the Paying Agent an aggregate
amount of Federal Funds or similar same-day funds equal to the
declared dividends to be paid to Holders on such Dividend
Payment Date, and shall give the Paying Agent irrevocable
instructions to apply such funds to the payment of such
dividends on such Dividend Payment Date.
(b) If the Company shall give a Notice of Redemption, then by
noon of the date fixed for redemption, the Company shall
deposit in trust with the Paying Agent an aggregate amount of
Federal Funds or similar same-day funds sufficient to redeem
such shares of AMPS called for redemption and shall give the
Paying Agent irrevocable instructions and authority to pay the
redemption price to the Holders of shares of AMPS called for
redemption upon surrender of the certificate or certificates
therefor.
3.4. Disbursing Dividends and Redemption Price.
After receipt of the Federal Funds or similar same-day funds and
instructions from the Company 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 AMPS and
(ii) on any date fixed for redemption, the redemption price of any shares of
AMPS called for redemption. The amount of dividends for any Dividend Period to
be paid by the Paying Agent to Holders will be determined by the Company as set
forth in Paragraph 2 of the Articles Supplementary. The redemption price to be
paid by the Paying Agent to the Holders of any shares of AMPS called for
redemption will be determined as set forth in Paragraph 4 of the Articles
Supplementary. The Company shall notify the Paying Agent in writing of a
decision to redeem any shares of AMPS on or prior to the date specified in
Section 3.2 above, and such notice by the Company to the Paying Agent shall
contain the information required to be stated in a Notice of Redemption required
to be mailed by the
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Company to such Holders. The Paying Agent shall have no duty to determine the
redemption price and may rely conclusively on the amount thereof set forth in a
Notice of Redemption.
IV. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
4.1. Original Issue of Stock Certificates.
On the Date of Original Issue for any share of AMPS, one certificate
for the AMPS shall be issued by the Company and registered in the name of Cede &
Co., as nominee of the Securities Depository, and countersigned by the Paying
Agent. The Company will give the Auction Agent prior written notice and
instruction as to the issuance and redemption of AMPS.
4.2. Registration of Transfer or Exchange of Shares.
Except as provided in this Section 4.2, the shares of AMPS shall be
registered solely in the name of the Securities Depository or its nominee. If
the Securities Depository shall give notice of its intention to resign as such,
and if the Company shall not have selected a substitute Securities Depository
acceptable to the Paying Agent prior to such resignation, then upon such
resignation, the shares of AMPS, at the Company's request, may be registered for
transfer or exchange, and new certificates thereupon shall be issued in the name
of the designated transferee or transferees, upon surrender of the old
certificate in form deemed by the Paying Agent properly endorsed for transfer
with (a) all necessary endorsers' signatures guaranteed in such manner and form
as the Paying Agent may require by a guarantor reasonably believed by the Paying
Agent to be responsible, (b) such assurances as the Paying Agent shall deem
necessary or appropriate to evidence the genuineness and effectiveness of each
necessary endorsement and (c) satisfactory evidence of compliance with all
applicable laws relating to the collection of taxes in connection with any
registration of transfer or exchange or funds necessary for the payment of such
taxes.
4.3. Removal of Legend.
Any request for removal of a legend indicating a restriction on
transfer from a certificate evidencing shares of AMPS shall be accompanied by an
opinion of counsel stating that such legend may be removed and such shares may
be transferred free of the restriction described in such legend, said opinion to
be delivered under cover of a letter from a Company Officer authorizing the
Paying Agent to remove the legend on the basis of said opinion.
4.4. Lost, Stolen or Destroyed Stock Certificates.
The Paying Agent shall issue and register replacement certificates for
certificates represented to have been lost, stolen or destroyed, upon the
fulfillment of such requirements as shall be deemed appropriate by the Company
and by the Paying Agent, subject at all times to provisions of law, the By-Laws
of the Company governing such matters and resolutions adopted by the Company
with respect to lost, stolen or destroyed securities. The Paying Agent may issue
new certificates in exchange for and upon the cancellation of mutilated
certificates. Any request by the Company to the Paying Agent to issue a
replacement or new certificate pursuant to this Section 4.4 shall be deemed to
be a representation and warranty by the Company to the Paying Agent that such
issuance will comply with provisions of applicable law and the By-Laws and
resolutions of the Company.
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4.5. Disposition of Canceled Certificates; Record Retention.
The Paying Agent shall retain stock certificates which have been
canceled in transfer or in exchange and accompanying documentation in accordance
with applicable rules and regulations of the Securities and Exchange Commission
for two calendar years from the date of such cancellation. The Paying Agent,
upon written request by the Company, shall afford to the Company, its agents and
counsel access at reasonable times during normal business hours to review and
make extracts or copies (at the Company's sole cost and expense) of such
certificates and accompanying documentation. Upon request by the Company at any
time during this two-year period, the Paying Agent shall deliver to the Company
the canceled certificates and accompanying documentation. The Company, at its
expense, shall retain such records for a minimum additional period of four
calendar years from the date of delivery of the records to the Company and shall
make such records available during this period at any time, or from time to
time, for reasonable periodic, special, or other examinations by representatives
of the Securities and Exchange Commission. The Company also shall undertake to
furnish to the Securities and Exchange Commission, upon demand, either at their
principal office or at any regional office, complete, correct and current hard
copies of any and all such records.
4.6. Stock Register.
The Paying Agent shall maintain the stock register, which shall contain
a list of the Holders, the number of shares held by each Holder and the address
of each Holder. The Paying Agent shall record in the stock register any change
of address of a Holder upon notice by such Holder. In case of any written
request or demand for the inspection of the stock register or any other books of
the Company in the possession of the Paying Agent, the Paying Agent will notify
the Company and secure instructions as to permitting or refusing such
inspection; provided, however, that the Auction Agent reserves the right and is
authorized to permit such inspection if (i) it is ordered to do so by a court of
competent jurisdiction or a regulatory body, judicial or quasi-judicial agency
or authority having the authority to compel such disclosure, (ii) it is advised
by its counsel that its failure to do so would be unlawful or (iii) failure to
do so would expose the Auction Agent to loss, liability, claim, damage or
expense for which it has not received indemnity or security satisfactory to it.
4.7. Return of Funds.
Any funds deposited with the Paying Agent by the Company for any reason
under this Agreement, including for the payment of dividends or the redemption
of shares of AMPS, that remain with the Paying Agent after 12 months shall be
repaid to the Company upon written request by the Company.
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V. REPRESENTATIONS AND WARRANTIES.
5.1. Representations and Warranties of the Company.
The Company represents and warrants to the Auction Agent that:
(i) the Company is duly organized and is validly existing as
a corporation in good standing under the laws of the State of
Maryland, and has full power to execute and deliver this
Agreement and to authorize, create and issue the shares of
AMPS;
(ii) the Company is registered with the Securities and
Exchange Commission under the Investment Company Act of 1940,
as amended, as a closed-end, diversified, management
investment company;
(iii) this Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
subject as to such enforceability to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equitable principles;
(iv) the forms of the certificate evidencing the shares of
AMPS comply with all applicable laws of the State of Maryland;
(v) the shares of AMPS have been duly and validly authorized
by the Company 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) at the time of the offering of the shares of AMPS, the
shares offered will be registered under the Securities Act of
1933, as amended, and no further action by or before any
governmental body or authority of the United States or of any
state thereof is required in connection with the execution and
delivery of this Agreement or will be required in connection
with the issuance of the shares of AMPS, except such action as
required by applicable state securities or insurance laws, all
of which action will have been taken;
(vii) the execution and delivery of this Agreement and the
issuance and delivery of the shares of AMPS do not and will
not conflict with, violate, or result in a breach of, the
terms, conditions or provisions of, or constitute a default
under, the Charter or the By-Laws of the Company, any law or
regulation applicable to the Company, any order or decree of
any court or public authority having jurisdiction over the
Company, or any mortgage, indenture, contract, agreement or
undertaking to which the Company is a party or by which it is
bound; and
(viii) no taxes are payable upon or in respect of the
execution of this Agreement or will be payable upon or in
respect of the issuance of the shares of AMPS.
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5.2. Representations and Warranties of the Auction Agent.
The Auction Agent represents and warrants to the Company that the
Auction Agent is duly organized and is validly existing as a banking corporation
in good standing under the laws of the State of New York, and has the corporate
power to enter into and perform its obligations under this Agreement.
VI. THE AUCTION AGENT.
6.1. Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the
Company hereunder and owes no fiduciary duties to any Person
except as specifically provided by this Agreement. The Auction
Agent owes no duties to any person other than the Company by
reason of this Agreement.
(b) The Auction Agent undertakes to perform such duties and
only such duties as are set forth specifically in this
Agreement, and no implied covenants or obligations shall be
read into this Agreement against the Auction Agent.
(c) In the absence of willful misconduct 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 the absence of willful misconduct unless
the Auction Agent shall have been negligent in ascertaining
(or failing to ascertain) the pertinent facts.
(d) The Auction Agent shall not be responsible or liable for
any failure or delay in the performance of its obligations
under this Agreement arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes;
fires, floods; wars; civil or military disturbances; sabotage;
acts of war or terrorism; epidemics; riots; interruptions,
loss or malfunctions of utilities; computer (hardware or
software) or communications services; accidents; labor
disputes (including, without limitation, strikes or work
stoppages); acts of civil or military authority or
governmental actions; it being understood that the Auction
Agent shall use reasonable efforts which are consistent with
accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances. In
no event shall the Auction Agent be responsible or liable for
special, indirect or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit),
even if the Auction Agent has been advised of the likelihood
of such loss or damage and regardless of the form of action.
6.2. Rights of the Auction Agent.
(a) The Auction Agent may conclusively rely upon, and shall be
protected in acting or refraining from acting upon, any
communication authorized hereby and
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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 or by other electronic means
acceptable to the parties authorized hereby which the Auction
Agent believes in good faith to have been given by the Company
or by a Broker-Dealer. The Auction Agent may record telephone
communications with the Company or with the Broker-Dealers or
with both.
(b) The Auction Agent may consult with counsel of its choice,
and the written advice of such counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and
in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend
or risk its own funds or otherwise incur or become exposed to
financial liability in the performance of its duties
hereunder. The Auction Agent shall be under no liability for
interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
(d) The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or
attorneys.
(e) The Auction Agent shall have no obligation or liability
with respect to the registration or exemption therefrom of the
AMPS under the federal or state securities laws or with
respect to the sufficiency or the conformity of any transfer
of the AMPS to the terms of the Auction Agreement, the
Broker-Dealer Agreements, the AMPS or any other document
contemplated thereby.
6.3. Auction Agent's Disclaimer.
The Auction Agent makes no representation as to the validity or the
adequacy of this Agreement, the Broker-Dealer Agreements or the AMPS.
6.4. Compensation, Expenses and Indemnification.
(a) The Company shall pay to the Auction Agent reasonable
compensation for all services rendered by it under this
Agreement and under the Broker-Dealer Agreements as shall be
agreed by the Auction Agent and the Company from time to time
as shall be set forth in a separate writing signed by the
Company and the Auction Agent, subject to adjustments if the
AMPS no longer are held of record by the Securities Depository
or its nominee or if there shall be such other change as shall
increase materially the Auction Agent's obligations hereunder
or under the Broker-Dealer Agreements.
(b) The Company shall reimburse the Auction Agent upon its
request for all reasonable expenses, disbursements and
advances incurred or made by the Auction Agent in accordance
with any provision of this Agreement and of the Broker-Dealer
Agreements (including the reasonable compensation, expenses
and
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disbursements of its agents and counsel), except any
expense, disbursement or advance attributable to its
negligence or willful misconduct.
(c) The Company shall indemnify the Auction Agent, for, and
hold it harmless against, any loss, liability or expense
incurred without negligence or willful misconduct 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 willful misconduct.
VII. MISCELLANEOUS.
7.1. Term of Agreement.
(a) The term of this Agreement is unlimited unless it shall be
terminated as provided in this Section 7.1. The Company may
terminate this Agreement at any time by so notifying the
Auction Agent, provided that if any AMPS remain outstanding
the Company shall have entered into an agreement in
substantially the form of this Agreement with a successor
auction agent. The Auction Agent may terminate this Agreement
upon prior notice to the Company on the date specified in such
notice, which date shall be no earlier than 60 days after
delivery of such notice. If the Auction Agent resigns while
any shares of AMPS remain outstanding, the Company shall use
its best efforts to enter into an agreement with a successor
auction agent containing substantially the same terms and
conditions as this Agreement.
(b) Except as otherwise provided in this Section 7.1(b), the
respective rights and duties of the Company and the Auction
Agent under this Agreement shall cease upon termination of
this Agreement. The Company's representations, warranties,
covenants and obligations to the Auction Agent under Sections
5 and 6.4 hereof shall survive the termination hereof. Upon
termination of this Agreement, the Auction Agent shall (i)
resign as Auction Agent under the Broker-Dealer Agreements,
(ii) at the Company's request, deliver promptly to the Company
copies of all books and records maintained by it in connection
with its duties hereunder, and (iii) at the request of the
Company, transfer promptly to the Company or to any successor
auction agent any funds deposited by the Company with the
Auction Agent (whether in its capacity as Auction Agent or as
Paying Agent) pursuant to this Agreement which have not been
distributed previously by the Auction Agent in accordance with
this Agreement.
(c) If the AMPS shall no longer settle through an electronic
book entry system, the Auction Agent (but not necessarily the
Paying Agent) shall cease to perform its duties hereunder, and
under any Broker-Dealer Agreement.
7.2. Communications.
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Except for (i) communications authorized to be made by telephone (or by
other electronic means acceptable to the parties) pursuant to this Agreement or
the Auction Procedures and (ii) communications in connection with Auctions
(other than those expressly required to be in writing), all notices, requests
and other communications to any party hereunder shall be in writing (including
telecopy or similar writing) and shall be given to such party at its address or
telecopier number set forth below:
If to the Company, MUNI INTERMEDIATE DURATION FUND, INC.
addressed to: 000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasurer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Auction The Bank of New York
Agent, addressed to: Corporate Trust-Dealing and Trading Group
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Desk
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
or such other address or telecopier number as such party hereafter may specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Company by a Company Officer and
on behalf of the Auction Agent by an Authorized Officer.
7.3. Entire Agreement.
This Agreement contains the entire agreement between the parties
relating to the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or inferred,
between the parties relating to the subject matter hereof, except for agreements
relating to the compensation of the Auction Agent.
7.4. Benefits.
Nothing herein, express or implied, shall give to any Person, other
than the Company, the Auction Agent and their respective successors and assigns,
any benefit of any legal or equitable right, remedy or claim hereunder.
7.5. Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or
in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. The
Company shall notify the Auction Agent of any change in the
Articles
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Supplementary prior to the effective date of any such change.
If any such change in the Articles Supplementary materially
increases the Auction Agent's obligations hereunder, the
Company shall obtain the written consent to the Auction Agent
prior to the effective date of such change.
(b) Failure of either party hereto to exercise any right or
remedy hereunder in the event of a breach hereof by the other
party shall not constitute a waiver of any such right or
remedy with respect to any subsequent breach.
7.6. Successors and Assigns.
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and permitted assigns of each of the
Company and the Auction Agent. This Agreement may not be assigned by either
party hereto absent the prior written consent of the other party, which consent
shall not be withheld unreasonably.
7.7. Severability.
If any clause, provision or section hereof shall be ruled invalid or
unenforceable by any court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
7.8. Execution in Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
7.9. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed in said State.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
MUNI INTERMEDIATE DURATION FUND,
INC.
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
-----------------------------------
Name:
Title:
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