Exhibit (k)(4)
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AUCTION AGENT AGREEMENT
between
MUNIYIELD NEW YORK INSURED FUND, INC.
and
THE BANK OF NEW YORK
Dated as of [___], 2005
Relating to
AUCTION MARKET PREFERRED STOCK
("AMPS"),
Series F
of
MUNIYIELD NEW YORK INSURED FUND, INC.
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THIS AUCTION AGENT AGREEMENT, dated as of [___], 2005, is between
MUNIYIELD NEW YORK INSURED 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 1,800 shares of
Auction Market Preferred Stock, Series F ("Series F 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 F 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 F 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
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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 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
---- -----
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.
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Not earlier than 1:00 P.M. Auction Agent makes determinations
pursuant to Paragraph 10(d)(i) of
the Articles Supplementary.
By approximately Auction Agent advises the Company of
3:00 P.M. the 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 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 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.
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(e) Subject to Section 2.2(a), the Auction Agent shall maintain
a list of Broker-Dealers.
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.
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III. THE AUCTION AGENT AS PAYING AGENT.
3.1. The Paying Agent.
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
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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 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.
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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
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(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.
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.
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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 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
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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
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.
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(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.
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, MUNIYIELD NEW YORK INSURED 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.
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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 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.
MUNIYIELD NEW YORK INSURED FUND, INC.
By:
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Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
