BROKER-DEALER AGREEMENT
AMONG
THE BANK OF NEW YORK
AS AUCTION AGENT
------------------------------------
AS BROKER-DEALER
DATED AS OF DECEMBER 11, 2002
RELATING TO
MUNICIPAL AUCTION RATE CUMULATIVE PREFERRED SHARES OF
BLACKROCK INSURED MUNICIPAL INCOME TRUST
BROKER-DEALER AGREEMENT dated as of December 11, 2002 (this "Agreement"),
among (i) The Bank of New York, a New York banking corporation, as auction agent
(the "Auction Agent") (not in its individual capacity but solely as agent)
pursuant to authority granted to it in the Auction Agent Agreement, (ii)
BlackRock Insured Municipal Income Trust, a Delaware statutory trust (the
"Trust"), and (iii) each broker-dealer whose name appears on the signature page
hereof, as broker-dealer (together with its successors and assigns as such
hereinafter referred to as "BD").
The Trust intends to issue shares of one or more series of Municipal
Auction Rate Cumulative Preferred Shares, liquidation preference $25,000 per
share (the "Preferred Shares"). The shares of each series of Preferred Shares
shall be issued in book-entry form through the facilities of the Securities
Depository. References to "Preferred Shares" in this Agreement shall refer only
to the beneficial interests in the Preferred Shares unless the context otherwise
requires.
The Auction Procedures require the participation of a Broker-Dealer.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Auction Agent, the Trust and BD
agree as follows:
DEFINITIONS AND RULES OF CONSTRUCTION
TERMS DEFINED BY STATEMENT OF PREFERENCES. Capitalized terms not defined herein
shall have the respective meanings specified in the Statement.
TERMS DEFINED HEREIN. As used herein and in the Settlement Procedures, the
following terms shall have the following meanings, unless the context otherwise
requires:
"Agent Member" of any Person shall mean the member of, or
participant in, the Securities Depositary that will act on behalf of a Bidder.
"Agreement" with respect to the Trust shall mean this Agreement
as may be amended in writing with written consent of the Trust.
"Auction" shall have the meaning specified in Section 2.1 hereof.
"Auction" Procedures" shall mean the auction procedures
constituting Part II of the form of Statement as of the filing thereof.
"Authorized Officer" of the Auction Agent shall mean each Senior
Vice President, Vice President, Assistant Vice President, Assistant Treasurer
and Assistant Secretary of the Auction Agent assigned to its Corporate Trust and
Agency Group and every other officer or employee of the Auction Agent designated
as an "Authorized Officer" for purposes hereof in a communication to the Trust.
"Preferred Shares" shall mean the preferred shares, par value
$.001 per share, of the Trust designated as its "Municipal Auction Rate
Cumulative Preferred Shares" and bearing such further designation as to series
as the Board of Trustees of the Trust or any
committee thereof shall specify.
"Settlement Procedures" shall mean the Settlement Procedures
attached to the Auction Agency Agreement as Exhibit B.
"Statement" shall mean the Statement of Preferences of Auction
Rate Municipal Preferred Shares, as the same may be amended, supplemented or
modified from time to time.
"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 Vice President, 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 to the Auction Agent.
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:
Words importing the singular number shall include the plural
number and vice versa.
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.
The words "hereof," "herein," "hereto," and other words of
similar import refer to this Agreement as a whole.
All references herein to a particular time of day shall be to New
York City time.
This Agreement shall apply separately but equally to all series
of Preferred Shares that may be issued. Sections 1 and 2 hereof shall be read in
conjunction with the Statement and in the event of any conflict with the
Statement, the Statement shall take precedence.
WARRANTIES OF BD. BD hereby represents and warrants that this Broker-Dealer
Agreement has been duly authorized, executed and delivered by BD and that,
assuming the due authorization, execution and delivery hereof by the Auction
Agent, this Broker-Dealer Agreement constitutes a valid and binding agreement of
BD, enforceable against it in accordance with its terms. BD's representations
and warranties in this Section 1.4 shall survive the termination of this
Agreement.
THE AUCTIONS
PURPOSE; INCORPORATION BY REFERENCE OF AUCTION PROCEDURES AND SETTLEMENT
PROCEDURES.
On each Auction Date, the provisions of the Auction Procedures
will be
followed by the Auction Agent for the purpose of determining the Applicable Rate
for the Preferred Shares for the next Dividend Period. Each periodic
implementation of such procedures is hereinafter referred to as an "Auction."
All of the provisions contained in the Auction Procedures and the
Settlement Procedures are incorporated herein by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions were fully set forth herein.
BD agrees to act as, and assumes the obligations of and
limitations and restrictions placed upon, a Broker-Dealer under this Agreement.
BD acknowledges and agrees that each provision of the Auction
Procedures that requires BD to perform an obligation or procedure is hereby
incorporated herein by reference and that this Agreement shall constitute the
Trust's instruction, and BD hereby agrees, to perform such obligations and
procedures without further request by or instructions from the Trust.
BD may participate in Auctions for its own account.
PREPARATION FOR EACH AUCTION.
Not later than 9:30 a.m. on each Auction Date, the Auction Agent
shall advise BD by telephone or other electronic means, to be confirmed in
writing by the Auction Agent, of the Maximum Rate, Reference Rate(s) and
Treasury Note Rate(s).
BD shall cause the Maximum Rate to be communicated as promptly as
practicable to its customers who hold or may be interested in acquiring
Preferred Shares.
As promptly as practicable after determining each Auction Date,
but not later than 9:15 a.m. on the Business Day preceding such Auction Date,
the Auction Agent shall notify BD, by such means as the Auction Agent deems
practicable, of the scheduled date of such Auction Date. If the Auction Date for
any Auction shall be changed after the Auction Agent has given such notice or
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 BD not later than the earlier
of (x) 9:15 a.m. on the Business Day preceding the new Auction Date, and (y)
9:15 a.m. on the original Auction Date. Thereafter, BD shall promptly notify
customers of BD that are Existing Holders of such change in the Auction Date.
If required by applicable law, or requested by the Auction Agent,
BD shall provide a list of Existing Holders based upon inquiries of those
Persons such Broker-Dealer believes are Beneficial Owners as a result of the
most recent Auction to the Auction Agent promptly after any date so requested by
the Auction Agent. The Auction Agent shall keep confidential any such
information, including information received as to the identity of Bidders in any
Auction, and shall not disclose any such information so provided to any Person
other than the other parties hereto, provided that the Auction Agent each
reserves the right to disclose any such information if (a) it is ordered to do
so by a court of competent jurisdiction or a regulatory, judicial or
quasi-judicial agency, (b) it is advised by its counsel that its failure to do
so would be
unlawful or (c) failure to do so would expose the Auction Agent to loss,
liability, claim, damage or expense for which it has not received indemnity
satisfactory to it.
BD agrees to maintain a list of customers relating to a series of
Preferred Shares and to use its best efforts, subject to existing laws and
regulations, to contact the customers on such list whom BD believes may be
interested in participating in the Auction on each Auction Date, as a Potential
Holder or a Potential Beneficial Owner, for the purposes set forth in the
Auction Procedures. Nothing herein shall require BD to submit an Order for any
customer in any Auction.
The Auction Agent's registry of Existing Holders of shares of a
series of Preferred Shares shall be conclusive and binding on BD. BD may inquire
of the Auction Agent between 3:00 p.m. on the Business Day preceding an Auction
for shares of a series of Preferred Shares and 9:30 a.m. on the Auction Date for
such Auction to ascertain the number of shares of such series in respect of
which the Auction Agent has determined BD to be an Existing Holder. If BD
believes it is the Existing Holder of fewer shares of such series than specified
by the Auction Agent in response to BD's inquiry, BD may so inform the Auction
Agent of that belief. BD shall not, in its capacity as Existing Holder of shares
of such series, submit Orders in such Auction in respect of shares of such
series covering in the aggregate more than the number of shares of such series
specified by the Auction Agent in response to BD's inquiry.
AUCTION SCHEDULE; METHOD OF SUBMISSION OF ORDERS.
The Auction Agent shall conduct Auctions in accordance with the
schedule set forth below. Such schedule may be changed at any time by the
Auction Agent with the consent of the Trust, which consent shall not be
unreasonably withheld. The Auction Agent shall give written notice of any such
change to BD which shall have the right to review such change. Such notice shall
be received one Business Day 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-Dealer of the applicable
Maximum Rate and the Reference
Rate(s) and Treasury Note Rate(s)
as set forth in Section 2.2(a)
hereof.
9:30 a.m. - 1:30 p.m. Auction Agent assembles information
communicated to it by Broker-Dealer
as provided in Section 2(a) of the
Auction Procedures. Submission
Deadline is 1:30 p.m.
Not earlier than Auction Agent makes determinations
1:30 p.m. pursuant to 3(a) of the Auction
Procedures.
By approximately Auction Agent advises the Trust of
3:30 p.m. results of Auction as provided in
Section 3(b) of the Auction
Procedures. Submitted Bids and
Submitted Sell Orders are accepted
and rejected in whole or in part
and Preferred Shares are allocated
as provided in Section 4 of the
Auction Procedures. Auction Agent
gives notice of Auction results as
set forth in paragraph (a) of the
Settlement Procedures.
BD may designate one or more individuals in its organization who
will coordinate its procedures in connection with Auctions and purchases and
sales of shares of any series of Preferred Shares.
BD agrees to handle its customers' order in accordance with its
duties under applicable securities laws and rules.
To the extent that pursuant to Section 4 of the Auction
Procedures of the Trust, BD continues to hold, sells or purchases a number of
shares that is fewer than the number of shares in an Order submitted by BD to
the Auction Agent in which BD designated itself as an Existing Holder or
Potential Holder in respect of customer Orders, BD shall make appropriate pro
rata allocations among its customers for which it submitted Orders of similar
tenor. If as a result of such allocations, any Beneficial Owner would be
entitled or required to sell, or any Beneficial Owner would be entitled or
required to purchase, a fraction of a Preferred Share on any Auction Date, BD
shall, in such manner as it shall determine in its sole discretion, round up or
down the number of Preferred Shares to be purchased or sold on such Auction Date
by any Beneficial Owner or Potential Beneficial Owner on whose behalf BD
submitted an Order so that the number of shares so purchased or sold by each
such Beneficial Owner or Potential Beneficial Owner on such Auction Date shall
be whole shares.
BD shall submit Orders to the Auction Agent in writing in
substantially the form attached hereto as Exhibit A. BD shall submit separate
Orders to the Auction Agent for each Potential Holder or Existing Holder on
whose behalf BD is submitting an Order and shall not net or aggregate the Orders
of Potential Holders or Existing Holders on whose behalf BD is submitting
Orders.
BD shall deliver to the Auction Agent a written notice,
substantially in the form attached hereto as Exhibit B, of transfers of
Preferred Shares made through BD by an
Existing Holder to another Person other than pursuant to an Auction and a
written notice, substantially in the form attached hereto as Exhibit C, of the
failure of any Preferred Shares to be transferred to or by any Person that
purchased or sold Preferred Shares through BD pursuant to an Auction. The
Auction Agent is not required to accept any notice delivered pursuant to the
terms of the foregoing sentence with respect to an Auction unless it is received
by the Auction Agent by 3:30 p.m. on the Business Day next preceding the
applicable Auction Date.
NOTICES.
On each Auction Date, the Auction Agent shall notify BD by
telephone or facsimile (or other electronic means acceptable to both parties) of
the results of the Auction as set forth in paragraph (a) of the Settlement
Procedures. By approximately 11:30 a.m. on the Business Day next succeeding such
Auction Date, the Auction Agent shall notify BD in writing of the disposition of
all Orders submitted by BD in the Auction held on such Auction Date.
(b) BD shall notify each Existing Holder or Potential Holder on
whose behalf BD has submitted an Order as set forth in paragraph (b) of the
Settlement Procedures and take such other action as is required of BD pursuant
to the Settlement Procedures.
DESIGNATION OF SPECIAL RATE PERIOD.
If the Trust delivers to its Auction Agent a notice of the
Auction Date for any series of Preferred Shares of the Trust for a Rate Period
thereof that next succeeds a Rate period that is not a Minimum Rate Period in
the form of Exhibit C to the Auction Agency Agreement, and BD is a Broker-Dealer
of such series, the Auction Agent shall deliver such notice to BD as promptly as
practicable after its receipt of such notice from the Trust.
If the Board of Trustees of the Trust proposes to designate any
succeeding Subsequent Rate Period of any series of Preferred Shares of the Trust
as a Special Rate Period and the Trust delivers to its Auction Agent a notice of
such proposed Special Rate Period in the form of Exhibit D to the Auction Agency
Agreement, and BD is a Broker-Dealer for such series, such Auction Agent shall
deliver such notice to BD as promptly as practicable after its receipt of such
notice from the Trust.
If the Board of Trustees of the Trust determines to designate
such succeeding Subsequent Rate Period as a Special Rate Period, and the Trust
delivers to its Auction Agent a notice of such Special Rate Period in the form
of Exhibit E to the Auction Agency Agreement not later than 11:00 a.m. on the
second Business Day next preceding the first day of such Rate Period, and BD is
a Broker-Dealer for such series, such Auction Agent shall deliver such notice to
BD not later than 3:00 p.m. on such second Business Day.
If the Trust shall deliver to its Auction Agent a notice not
later than 11:00 a.m. on the second Business Day next preceding the first day of
any Rate Period stating that the Trust has determined not to exercise its option
to designate such succeeding Subsequent Rate Period as a Special Rate Period, in
the form of Exhibit F to the Auction Agency Agreement, or shall fail to timely
deliver either such notice or a notice in the form of Exhibit E to the Auction
Agency Agreement, and BD is a Broker-Dealer for such series, such Auction Agent
shall deliver
a notice in the form of Exhibit F to the Auction Agency Agreement to BD not
later than 3:00 p.m. on such second Business Day.
ALLOCATION OF TAXABLE INCOME.
If the Trust delivers to its Auction Agent a notice in the form
of Exhibit I to the Auction Agency Agreement designating all or a portion of any
dividend on shares of any series of Preferred Shares of the Trust to consist of
net capital gains or other income taxable for Federal income tax purposes, and
BD is a Broker-Dealer for such series, such Auction Agent shall deliver such
notice to BD on the Business Day following its receipt of such notice from the
Trust. On or prior to the Auction Date referred to in such notice, BD will
contact each of its customers that is a Beneficial Owner of shares of such
series of Preferred Shares or a Potential Beneficial Owner of shares of such
series of Preferred Shares interested in submitting an Order in the Auction to
be held on such Auction Date, and BD will notify such Beneficial Owners and
Potential Beneficial Owners of the contents of such notice. BD will be deemed to
have notified such Beneficial Owners and Potential Beneficial Owners if, for
each of them, (i) BD makes a reasonable effort to contact such Beneficial Owner
or Potential Beneficial Owner by telephone, and (ii) upon failing to contact
such Beneficial Owner or Potential Beneficial Owner by telephone BD mails
written notification to such Beneficial Owner or Potential Beneficial Owner at
the mailing address indicated in the account records of BD.
The Auction Agent for any series of Preferred Shares shall be
required to notify BD if it is a Broker-Dealer for such series within two
Business Days after each Auction of such series of the Auction Agent's receipt
of notice from the Trust that such Auction involves an allocation of income
taxable for Federal income tax purposes as to the dollar amount per share of
such taxable income and income exempt from Federal income taxation included in
the related dividend.
FAILURE TO DEPOSIT.
If: (i) any Failure to Deposit shall have occurred with respect
to shares of any series of Preferred Shares of the Trust during any Rate Period
thereof (other than any Special Rate Period of Rate Period Days or any Rate
Period succeeding any Special Rate Period of more than 364 Rate Period Days
during which a Failure to Deposit occurred that has not been cured), but, prior
to 12:00 Noon, New York City time, on the third Business Day next succeeding the
date on which such Failure to Deposit occurred, such Failure to Deposit shall
have been cured in accordance with Section 2.8(c) of the Auction Agency
Agreement and the Trust shall have paid to the Auction Agent for such series the
applicable Late Charge as described in Section 2.8(a) of the Auction Agency
Agreement, then, if BD is a Broker-Dealer for such series, such Auction Agent
shall deliver a notice in the form of Exhibit G to the Auction Agency Agreement
by first-class mail, postage prepaid, to BD not later than one Business Day
after its receipt of the payment from the Trust curing such Failure to Deposit
and such Late Charge.
If: (i) any Failure to Deposit shall have occurred with respect
to shares of any series of Preferred Shares of the Trust during any Rate Period
thereof (other than any Special Rate Period of more than 364 Rate Period Days or
any Rate Period succeeding any Special Rate Period of more than 364 Rate Period
Days during which a Failure to Deposit occurred but has
not been cured), and, prior to 12:00 Noon, New York City time, on the third
Business Day next succeeding the date on which such Failure to Deposit occurred,
such Failure to Deposit shall not have been cured as described in Section 2.8(c)
of the Auction Agency Agreement or the Trust shall not have paid to the Auction
Agent for such series the applicable Late Charge described in Section 2.8(a) of
the Auction Agency Agreement; or (ii) any Failure to Deposit shall have occurred
with respect to shares of any series of Preferred Shares of the Trust during a
Special Rate Period thereof of more than 364 Rate Period Days, or during any
Rate Period thereof succeeding any Special Rate Period of more than 364 Rate
Period Days during which a Failure to Deposit occurred that has not been cured,
and, prior to 12:00 noon, New York City time, on the fourth Business Day
preceding the Auction Date for the Rate Period subsequent to such Rate Period,
such Failure to Deposit shall not have been cured as described in Section 2.8(c)
of the Auction Agency Agreement of the Trust shall not have paid to the Auction
Agent for such series the applicable Late Charge described in Section 2.8(a) of
the Auction Agency Agreement; then such Auction Agent shall deliver a notice in
the form of Exhibit H to the Auction Agency Agreement to the Broker-Dealers for
such series not later than one Business Day after the receipt of the payment
from the Trust curing such Failure to Deposit and Late Charge.
SERVICE CHARGE TO BE PAID TO BD.
No later than 12:00 noon on each Dividend Payment Date, the
Auction Agent after each Auction will pay a service charge from funds provided
by the Trust to each Broker-Dealer on the basis of the purchase price of
Preferred Shares placed by such Broker-Dealer at such Auction. The service
charge shall be (i) in the case of any Auction Date immediately preceding a
seven-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 date
of original issue of such shares to but excluding the next succeeding dividend
payment date of such shares) and the denominator of which is 365, times (B) 1/4
of 1%, times (C) $25,000, times (D) the sum of the aggregate number of shares of
outstanding Preferred Shares for which the Auction is conducted and (ii) in the
case of any Special Dividend Period the amount determined by mutual consent of
the Trust and any such Broker-Dealers and shall be based upon a selling
concession that would be applicable to an underwriting of fixed or variable rate
Preferred Shares with a similar final maturity or variable rate dividend period,
respectively, at the commencement of the Dividend Period with respect to such
Auction.
If the Trust determines to change the rate at which the
Broker-Dealer Fee accrues, the Trust shall mail to the Auction Agent a notice
thereof within two Business Days of such change. Any change in the Broker-Dealer
Fee Rate shall be effective on the Auction Date next succeeding the Auction
Agent's receipt of notice of such change.
SETTLEMENT.
If any Existing Holder selling Preferred Shares in an Auction
fails to deliver such Preferred Shares (by authorized book-entry), the BD of any
Person that was to have purchased Preferred Shares in such Auction may deliver
to such Person a number of Preferred Shares that is less than the number of
Preferred Shares that otherwise were to be purchased by such Person. In such
event, the number of Preferred Shares to be so delivered shall be
determined by BD. Delivery of such lesser number of Preferred Shares shall
constitute good delivery. Upon the occurrence of any such failure to deliver
Preferred Shares, BD shall deliver to the Auction Agent the notice required by
Section 2.3(c)(ii) hereof. Notwithstanding the foregoing provisions of this
Section 2.9(a), any delivery or non delivery of Preferred Shares which
represents any departure from the results of an Auction, as determined by the
Auction Agent, shall be of no effect unless and until the Auction Agent shall
have been notified of such delivery or non-delivery in accordance with the terms
of Section 2.3(c)(ii) hereof. The Auction Agent shall have no duty or liability
with respect to enforcement of this Section 2.9(a).
Neither the Auction Agent nor the Trust shall have any
responsibility or liability with respect to the failure of an Existing Holder, a
Potential Holder or an Agent Member or any of them to deliver Preferred Shares
or to pay for Preferred Shares sold or purchased pursuant to the Auction
Procedures or otherwise.
Notwithstanding any provision of the Auction Procedures or the
Settlement Procedures to the contrary, in the event BD is an Existing Holder
with respect to shares of a series of Preferred Shares and the Auction
procedures provide that BD shall be deemed to have submitted a Sell Order in an
Auction with respect to such shares if BD fails to submit an Order in that
Auction with respect to such shares, BD shall have no liability to any Person
for failing to sell such shares pursuant to such a deemed Sell Order if (i) such
shares were transferred by the beneficial owner thereof without notification of
such transfer in compliance with the Auction Procedures or (ii) BD has indicated
to the Auction Agent pursuant to Section 2.2(f) of this Agreement that,
according to BD's records, BD is not the Existing Holder of such shares.
Notwithstanding any provision of the Auction Procedures or the
Settlement Procedures to the contrary, in the event an Existing Holder or
Beneficial Owner of shares of a series of Preferred Shares with respect to whom
a Broker-Dealer submitted a Bid to the Auction Agent for such shares that was
accepted in whole or in part, or submitted or is deemed to have submitted a Sell
Order for such shares that was accepted in whole or in part, fails to instruct
its Agent Member to deliver such shares against payment therefore, partial
deliveries of Preferred Shares that have been made in respect of Potential
Holders' or Potential Beneficial Owners' Submitted Bids for shares of such
series that have been accepted in whole or in part shall constitute good
delivery to such Potential Holders and Potential Beneficial Owners.
THE AUCTION AGENT
DUTIES AND RESPONSIBILITIES.
The Auction Agent is acting solely as agent for the Trust
hereunder and owes no duties, fiduciary or otherwise, to any other Person.
The Auction Agent undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement, the Auction Agent Agreement,
Auction Procedures or the Settlement Procedures against the Auction Agent.
In the absence of bad faith or negligence on its part, the
Auction Agent shall
not be liable for any action taken, suffered, or omitted or for any error of
judgment made by it in the performance of its duties under this Agreement. The
Auction Agent shall not be liable for any error resulting from the use or
reliance on a source of information used in good faith and without negligence to
make any determination, calculation or declaration hereunder. 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. In no event shall the Auction Agent be liable for special,
punitive, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Auction Agent has been
advised of the likelihood of such loss or damage and regardless of the form of
action.
The Auction Agent shall not be: (i) required to, and does not,
make any representations or have any responsibilities as to the validity,
accuracy, value or genuineness of any signatures or endorsements, other than its
own; (ii) obligated to take any legal action hereunder that might, in its
judgment, involve any expense or liability, unless it has been furnished with
indemnity satisfactory to the Auction Agent; and (iii) responsible for or liable
in any respect on account of the identity, Trust or rights of any Person (other
than itself and its agents and attorneys) executing or delivering or purporting
to execute or deliver any document under this Agreement or any Broker-Dealer
Agreement.
(e) 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; 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.
RIGHTS OF THE AUCTION AGENT.
The Auction Agent may conclusively rely and shall be fully
protected in acting or refraining from acting upon any communication authorized
by this Agreement and upon any written instruction, notice, request, direction,
consent, report, certificate, share certificate or other instrument, paper or
document believed by it to be genuine. The Auction Agent shall not be liable for
acting upon any communication authorized by this Agreement (including, but not
limited to, any made by telephone, telecopier or other means of electronic
communication acceptable to the parties hereto) which the Auction Agent believes
in good faith to have been given by the Trust or by BD. The Auction Agent may
record telephone communications with BD.
The Auction Agent may consult with counsel of its own choice, and
the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
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 may perform its duties and exercise its rights
hereunder
either directly or by or through agents or attorneys and shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed by it with due care.
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, 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.
AUCTION AGENT'S DISCLAIMER. The Auction Agent makes no representation as to, and
shall have no liability with respect to, the correctness of the recitals in, or
the validity, adequacy or accuracy of, this Agreement, the Auction Agent
Agreement, the Auction Procedures, the offering material used in connection with
the offer and sale of the Preferred Shares or any other agreement or instrument
executed in connection with the transactions contemplated herein or in any
thereof.
MISCELLANEOUS
TERMINATION. Any party may terminate this Agreement at any time upon five (5)
days' written notice to the other parties, which notice may be given by
facsimile as provided in Section 4.4 hereof. This Agreement shall automatically
terminate upon the redemption of all outstanding Preferred Shares or upon
termination of the Auction Agent Agreement.
BD represents that it (or if BD does not act as Agent Member, one
of its affiliates) shall make all dividend payments on the Preferred Shares
available in same-day funds on each Dividend Payment Date to customers that use
BD or affiliate as Agent Member.
AGENT MEMBER. BD is, and shall remain for the term of this Agreement, a member
of, or participant in, the Securities Depository (or an affiliate of such a
member or participant).
COMMUNICATIONS. Except for (i) communications authorized to be by telephone
pursuant to this Agreement or the Auction Procedures and (ii) communications in
connection with the Auctions (other than those expressly required to be in
writing), all notices, requests and other communications to any party hereunder
shall be in writing (for the purposes of this Agreement, telecopy or other means
of electronic communication acceptable to the parties shall be deemed to be in
writing) and shall be given to such party, addressed to it, at its address,
telecopy number set forth below and, where appropriate reference the particular
Auction to which such notice relates:
If to BD, _________________________
addressed: _________________________
_________________________
_________________________
Attention: _____________
Telephone No.: __________
Facsimile No.: __________
If to the Auction The Bank of New York
Agent, addressed: 0 Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Dealing and Trading Group - Auction Desk
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
000-000-0000
000-000-0000
If to the Trust, BlackRock Insured Municipal Income Trust
addressed: c/o BlackRock Financial Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
or such other address or facsimile number as such party may hereafter specify
for such purpose by notice to the other parties. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of BD by a BD Officer, on behalf of the
Auction Agent by an Authorized Officer and on behalf of the Trust by an
Authorized Trust Officer. Telephone communications may be recorded.
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.
BENEFITS. Nothing in this Agreement, express or implied, shall give to any
person, other than the Auction Agent, the Trust and BD and their respective
successors and permitted assigns, any benefit of any legal or equitable right,
remedy or claim under this Agreement.
AMENDMENT; WAIVER.
This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of each of the
parties hereto.
Failure of any party to this Agreement to exercise any right or
remedy hereunder in the event of a breach of this Agreement by any other party
shall not constitute a waiver of any such right or remedy with respect to any
subsequent breach.
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 parties hereto. This Agreement may not be assigned by any
party hereto absent the prior written consent of the other parties.
SEVERABILITY. If any clause, provision or section of this Agreement 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 remaining clause, provision or section hereof.
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.
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY PROVISIONS
THEREOF RELATING TO CONFLICTS OF LAW, OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF NEW YORK).
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.
THE BANK OF NEW YORK
as Auction Agent
By:
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
XXXXXXX XXXXX BARNEY INCORPORATED
as Broker-Dealer
By:
Name:
Title:
Exhibit A
To BROKER-DEALER
AGREEMENT
AUCTION BID FORM
(Submit only one Order on this Order Form)
BLACKROCK INSURED MUNICIPAL INCOME TRUST
Municipal Auction Rate Cumulative Preferred Shares ("Preferred Shares")
To: The Bank of New York Date of Auction __________
Corporate Trust Administration Series of Preferred Shares
000 Xxxxx Xxxx Xxxx- 0xx Xxxxx (indicate by
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000 Number Designation)
Attention: Dealing and Trading Group _______
The undersigned Broker-Dealer submits the following Order on behalf of the
Bidder listed below:
Name of Bidder: __________________________________
Bidder placed the Order listed below covering the number of
shares indicated (complete only one blank):
_________________ number of Preferred Shares now held by
Bidder (an Existing Holder), and the Order is a (check one):
|_| Hold Order; or
|_| Bid at a rate of ____%; or
|_| Sell Order;
-- or -
_________________ number of Preferred Shares not now held by
Bidder (a Potential Holder), and the Order is a Bid at a rate of
______%
Notes:
(1) If submitting more than one Bid for one Bidder, use additional
Order Forms.
(2) If one or more Bids covering in the aggregate more than the
outstanding number of Preferred Shares held by any Existing
Holder are submitted, such Bids shall be considered valid in the
order of priority set forth in the Auction Procedures.
(3) A Hold or Sell Order may be placed only by an Existing Holder
covering a number of Preferred Shares not greater than the number
of Preferred Shares currently held by such Existing Holder.
(4) Potential Holders may make Bids only, each of which must specify
a rate. If more than one Bid is submitted on behalf of any
Potential Holder, each Bid submitted shall be a separate Bid with
the rate specified.
(5) Bids may contain no more than three figures to the right of the
decimal point (.001 of 1%).
(6) An Order must be submitted in whole Preferred Shares with an
aggregate liquidation preference of $25,000.
Name of Broker-Dealer: ___________________
By: __________________________
Exhibit B
To BROKER-DEALER
AGREEMENT
(To be used only for transfers made other than
pursuant to an Auction)
TRANSFER FORM
BLACKROCK INSURED MUNICIPAL INCOME TRUST
Municipal Auction Rate Cumulative Preferred Shares ("Preferred Shares")
Series _____ Preferred Shares
(indicate by Number Designation)
We are (check one):
|_| the Existing Holder named below; or
|_| the Broker-Dealer for such Existing Holder; or
|_| the Agent Member for such Existing Holder.
We hereby notify you that such Existing Holder will transfer ___
Preferred Shares to_________________________
BLACKROCK INSURED MUNICIPAL
INCOME TRUST
--------------------------------------
By: _______________________________
Name:
Title:
--------------------------------------
(Name of Existing Holder)
--------------------------------------
(Name of Broker-Dealer)
--------------------------------------
(Name of Agent Member)
--------------------------------------
By: _______________________________
Name:
Title:
Exhibit C
To BROKER-DEALER
AGREEMENT
(To be used only for failures to deliver
Preferred Shares sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
BLACKROCK INSURED MUNICIPAL INCOME TRUST
Municipal Auction Rate Cumulative Preferred Shares ("Preferred Shares")
Series _____ Preferred Shares
(indicate by Number Designation)
Complete either I. or II.
I. We are a Broker-Dealer for ______________ (the "Purchaser"),
which purchased ____ Preferred Shares in the Auction held on
__________________ from the seller of such Preferred Shares.
II. We are a Broker-Dealer for _____________ (the "Seller"), which
sold ____ Preferred Shares in the Auction held on
____________________ to the purchaser of such Preferred Shares.
We hereby notify you that (check one):
__________ the Seller failed to deliver such Preferred Shares to the
Purchaser; or
__________ the Purchaser failed to make payment to the Seller upon
delivery of such Preferred Shares.
Name: ________________________________
(Name of Broker-Dealer)
------------------------------------------
By: __________________________________
Printed Name:
Title:
Capitalized terms used in this letter, unless otherwise defined herein,
shall have the meanings set forth in the Offering Documents.
(Name of Purchaser)
By: ______________________________
Name:
Title:
Address: _________________________
Dated:
