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AUCTION AGENT AGREEMENT
between
THE BLACKROCK NEW YORK INSURED MUNICIPAL
2008 TERM TRUST INC.
and
BANKERS TRUST COMPANY
Dated as of November 23, 1992
Relating to Auction Rate Municipal Preferred Stock (the "Preferred Shares")
Series F28 and Series F7
of
THE BLACKROCK NEW YORK INSURED
MUNICIPAL 2008 TERM TRUST INC.
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THIS AUCTION AGENT AGREEMENT dated as of November 23, 1992,
between THE BLACKROCK NEW YORK INSURED MUNICIPAL 2008 TERM TRUST INC., a
Maryland corporation (the "Company"), and BANKERS TRUST COMPANY, a New York
banking corporation. The Company proposes to duly authorize and issue 855
shares of Auction Rate Municipal Preferred Stock, Series F28, with a par
value of $.01 per share and a liquidation preference of $50,000 per share
plus an amount equal to accumulated but unpaid dividends (whether or not
earned or declared) plus the premium, if any, resulting from the
designation of a Premium Call Period ("Series F28 Preferred Shares") and
855 shares of Auction Rate Municipal Preferred Stock, Series F7, with a par
value of $.01 per share and a liquidation preference of $50,000 per share
plus an amount equal to accumulated but unpaid dividends (whether or not
earned or declared) plus the premium, if any, resulting from the
designation of a Premium Call Period ("Series F7 Preferred Shares") both
pursuant to the Company's Articles Supplementary (as defined below). The
Series F28 Preferred Shares and the Series F7 Preferred Shares are
sometimes herein together referred to as the "Preferred Shares."
A separate Auction (as defined below) will be conducted for each
series of Preferred Shares. The Company desires that Bankers Trust Company
perform certain duties as agent in connection with each Auction of
Preferred Shares (the "Auction Agent") and as the transfer agent,
registrar, dividend disbursing agent and redemption agent with respect to
the Preferred Shares (the "Paying Agent") upon the terms and conditions of
this Agreement, and hereby appoints Bankers Trust Company as said Auction
Agent and Paying Agent in accordance with those terms and conditions
(hereinafter generally referred to as the "Auction Agent" except in
Sections 3 and 4 below).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company and the Auction Agent agree as
follows:
1. 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 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 who is identified as
such in such Person's Purchaser's Letter.
(c) "Articles Supplementary" shall mean the Articles
Supplementary of the Company, establishing the powers, preferences and
rights of the Series F28 Preferred Shares and the Series F7 Preferred
Shares filed on November 18, 1992 in the Office of the State Department of
Assessments and Taxation of the State of Maryland.
(d) "Auction" shall have the meaning specified in
Section 2.1 hereof.
(e) "Auction Procedures" shall mean the Auction
Procedures that are set forth in Paragraph 11 of the Articles
Supplementary.
(f) "Authorized Officer" shall mean each Senior Vice
President, Vice President, Assistant Vice President, Trust Officer and
Assistant Secretary and Assistant Treasurer of the Auction Agent assigned
to its Corporate Trust and Agency Group and every other officer or employee
of the Auction Agent designated as an "Authorized Officer" for purposes
hereof in a communication to the Company.
(g) "Broker-Dealer Agreement" shall mean each agreement
between the Auction Agent and a Broker-Dealer substantially in the form
attached hereto as Annex A.
(h) "Company Officer" shall mean the Chairman, 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 notice from the
Company to the Auction Agent.
(i) "Holder" shall be a holder of record of one or more
shares of Series F28 Preferred Shares or Series F7 Preferred Shares, as the
case may be, listed as such in the stock register maintained by the Paying
Agent pursuant to Section 4.6.
(j) "Purchaser's Letter" shall mean a letter addressed
to the Company, the Auction Agent and a Broker-Dealer, substantially in the
form attached to the Broker-Dealer Agreement as Annex A.
(k) "Settlement Procedures" shall mean the Settlement
Procedures attached to the Broker-Dealer Agreement as Exhibit B.
1.3 Rules of Construction. Unless the context or use indicates
another or different meaning or intent, the following rules shall apply to
the construction of this Agreement:
(a) Words importing the singular number shall include
the plural number and vice versa.
(b) The captions and headings herein are solely for
convenience of reference and shall not constitute a part of this Agreement
nor shall they affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto," and other
words of similar import refer to this Agreement as a whole.
(d) All references herein to a particular time of day
shall be to New York City time.
2. The Auction.
2.1 Purpose; Incorporation by Reference of Auction Procedures
and Settlement Procedures. (a) The Articles Supplementary provide that the
Applicable Rate on Series F28 Preferred Shares or Series F7 Preferred
Shares, as the case may be, 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 Bankers Trust
Company as Auction Agent for purposes of the Auction Procedures. The
Auction Agent hereby accepts such appointment and agrees that, on each
Auction Date, it shall follow the procedures set forth in this Section 2
and the Auction Procedures for the purpose of determining the Applicable
Rate for the Series F28 Preferred Shares or the Series F7 Preferred Shares,
as the case may be, for the next Dividend Period therefor. Each periodic
operation of such procedures is hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction
Procedures and the Settlement Procedures are incorporated herein by
reference in their entirety and shall be deemed to be a part hereof to the
same extent as if such provisions were fully set forth herein.
2.2 Preparation for Each Auction; Maintenance of Registry of
Beneficial Owners. (a) At the time of closing of the initial issuance and
sale of the Preferred Shares (the "Closing"), the Company shall provide the
Auction Agent with a list of initial Broker-Dealers previously approved by
the Auction Agent and shall cause to be delivered to the Auction Agent for
execution by the Auction Agent a Broker-Dealer Agreement signed by each
such Broker-Dealer. Subsequent to the Closing and pursuant to Section
2.5(b) and subject to Section 2.5(c) hereof, the Auction Agent may, from
time to time, designate additional Broker Dealers. The Auction Agent shall
keep the list of Broker Dealers 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
Preferred Shares. Not later than seven days prior to any Auction Date for
which any change in such list of Broker-Dealers is to be effective, the
Auction Agent shall notify the Company in writing of such change and, if
any such change is the addition of a Broker-Dealer to such list, the
Auction Agent shall have entered into a Broker-Dealer Agreement with such
additional Broker-Dealer prior to the participation of any such
Broker-Dealer in any Auction.
(b) (i) 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.
(ii) If, after the date of this Agreement, there is
any change in the prevailing rating of Preferred Shares by either of the
rating agencies (or substitute or successor rating agencies) referred to in
the definition of the Maximum Applicable Rate, thereby resulting in any
change in the corresponding percentage for the Preferred Shares, as set
forth in said definition (the "Percentage"), the Company shall notify the
Auction Agent in writing of such change in the Percentage prior to 9:00
A.m. on the Auction Date for Preferred Shares next succeeding such change.
The Percentage for the Preferred Shares on the date of this Agreement is
110%. The Auction Agent shall be entitled to rely on the last Percentage of
which it has received notice from the Company (or, in the absence of such
notice, the Percentage set forth in the preceding sentence) in determining
the Maximum Applicable Rate as set forth in Section 2.2(e)(i) hereof.
(c) With respect to each Dividend Period that is a
Special Dividend Period, on or prior to the fourth day but not more than
seven days prior to an Auction Date for each series of the Preferred
Shares, the Company may, at its sole option and to the extent permitted by
law, by telephonic and written notice (a "Request for Special Dividend
Period") to the Auction Agent and to each Broker-Dealer, request that the
next succeeding Dividend Period for such series of Preferred Shares will be
a number of days (other than 28 in the case of the Series F28 Preferred
Shares or 7 in the case of the Series F7 Preferred Shares) evenly divisible
by 7 and specified in such notice, provided that for any Auction occurring
after the initial Auction, the Company may not give a Request for Special
Dividend Period (and any such request shall be null and void) unless
sufficient Clearing Bids were made in the last occurring Auction and unless
full cumulative dividends, any amounts due with respect to mandatory
redemptions and any Additional Dividends payable prior to such date have
been paid in full. Such Request for Special Dividend Period, in the case of
a Dividend Period of 182 days or less, shall be made on or prior to the 4th
day but not more than 7 days prior to an Auction Date for such series of
Preferred Shares and, in the case of a Dividend Period of more than 182
days, shall be given on or prior to the 14th day but not more than 28 days
prior to an Auction Date for such series of Preferred Shares. Upon
receiving such Request for Special Dividend Period, the Broker-Dealer(s)
shall jointly determine whether given the factors set forth in paragraph
2(c)(iii) of the Articles Supplementary it is advisable that the Company
issue a Notice of Special Dividend Period for the particular series of
Preferred Shares as contemplated by such Request for Special Dividend
Period and shall give the Company and the Auction Agent written notice (a
"Response") of such determination by no later than the third day prior to
such Auction Date. If the Broker-Dealer(s) shall not give the Company and
the Auction Agent a Response by such third day or if the Response states
that given the factors referred to above it is not advisable that the
Company give a Notice of Special Dividend Period (as defined below) for the
particular series of Preferred Shares, the Company may not give a Notice of
Special Dividend Period in respect of such Request for Special Dividend
Period. In the event the Response indicates that it is advisable that the
Company give a Notice of Special Dividend Period for the particular series
of Preferred Shares, the Company will by no later than the second day prior
to such Auction Date give a notice (a "Notice of Special Dividend Period")
to the Auction Agent, the Securities Depository and each Broker-Dealer,
which notice will specify the duration of the Special Dividend Period, the
Maximum Applicable Rate therefor and Specific Redemption Provisions, if
any. The Company shall not give a Notice of Special Dividend Period or
convert to a Special Dividend Period, or, if such Notice of Special
Dividend Period shall have already been given, shall give telephonic and
written notice of revocation (a "Notice of Revocation") to the Auction
Agent, each Broker-Dealer, and the Securities Depository on or prior to the
Business Day prior to the relevant Auction Date if (i) it has not obtained
the advice in writing of Xxxxx'x and S&P or any Substitute Rating Agency
that the proposed Special Dividend Period will not adversely affect their
then-current rating on the Preferred Shares, (ii) either the 1940 Act
Preferred Shares Coverage is not satisfied or the Company shall fail to
maintain S&P Eligible Assets and Xxxxx'x Eligible Assets each with an
aggregate Discounted Value at least equal to the Preferred Shares Basic
Maintenance Amount in each case on each of the two Valuation Dates
immediately preceding the Business Day prior to the relevant Auction Date
on an actual basis and on a pro forma basis giving effect to the proposed
Special Dividend Period (using as a pro forma dividend rate with respect to
such Special Dividend Period the dividend rate which the Broker-Dealers
shall advise the Company is an approximately equal rate for securities
similar to the Preferred Shares with an equal dividend period), (iii)
sufficient funds for the payment of dividends payable on the immediately
succeeding Dividend Payment Date have not been irrevocably deposited with
the Auction Agent by the close of business on the third Business Day
preceding the related Auction Date or (iv) the Broker-Dealer(s) jointly
advise the Company that after consideration of the factors referred to
above they have concluded that it is advisable to give a Notice of
Revocation. If the Company is prohibited from giving a Notice of Special
Dividend Period as a result of the factors enumerated in clause (i), (ii),
(iii) or (iv) of the preceding sentence or if the Company gives a Notice of
Revocation with respect to a Notice of Special Dividend Period, the next
succeeding Dividend Period will be a 28-day Dividend Period in the case of
the Series F28 Preferred Shares and a 7-day Dividend Period in the case of
the Series F7 Preferred Shares provided that if the then-current Dividend
Period 7 in the case of the Series F28 Preferred Shares is a Special
Dividend Period of less than 28 days, the next succeeding Dividend Period
will be the same length as the current Dividend Period. In addition, in the
event sufficient Clearing Bids are not made in any Auction or an Auction is
not held for any reason, the next succeeding Dividend Period will be a
28-day Dividend Period (in the case of Series F28 Preferred Shares) or a
7-day Dividend Period (in the case of Series F7 Preferred Shares) and the
Company may not again give a Notice of Special Dividend Period (and any
such attempted notice shall be null and void) until sufficient Clearing
Bids have been made in an Auction with respect to a 28-day Dividend Period
(in the case of Series F28 Preferred Shares or a 7-day Dividend Period (in
the case of Series F7 Preferred Shares).
(d) (i) Whenever the Company intends to include any net
capital gains or other taxable income in any dividend on Preferred Shares,
the Company will, in the case of a Dividend Period of 28 days or fewer, and
may, in the case of a Dividend Period of 35 days or more, notify the
Auction Agent of the amount to be so included at least five Business Days
prior to the Auction Date on which the Applicable Rate for such dividend is
to be established. Whenever the Auction Agent receives such notice from the
Company, it will in turn notify each Broker Dealer, who, on or prior to
such Auction Date, in accordance with its Broker-Dealer Agreement, will
notify its Existing Holders and Potential Holders believed to be interested
in submitting an Order in the Auction to be held on such Auction Date.
(ii) If the Company makes a Retroactive Taxable
Allocation, the Company will, within 90 days (and generally within 60 days)
after the end of its fiscal year for which a Retroactive Taxable Allocation
is made provide notice thereof to the Auction Agent and to each holder of
Preferred Shares (initially the Securities Depository) during such fiscal
year at such holder's address as the same appears or last appeared on the
stock books of the Company. The Company will, within 30 days after such
notice is given to the Auction Agent, pay to the Auction Agent (who will
then distribute to such holders of Preferred Shares), a cash amount equal
to the aggregate Additional Dividend with respect to all Retroactive
Taxable Allocations made to such holders during the fiscal year in
question.
(e) (i) On each Auction Date, the Auction Agent shall
determine the Maximum Applicable Rate from the higher of the 30-day "AA"
Composite Commercial Paper Rate and the Taxable Equivalent of the
Short-Term Municipal Bond Rate (except in the case of a Special Dividend
Period in which case the Maximum Applicable Rate shall be determined from
the higher of the Special Dividend Period Reference Rate and the Taxable
Equivalent of the Short-Term Municipal Bond Rate). If any such rate on
which the Maximum Applicable Rate is to be based is not quoted on an
interest basis but is quoted on a discount basis, the Auction Agent shall
convert the quoted rate to an Interest Equivalent, as set forth in
Paragraph 1 of the Articles Supplementary; or, if the rate obtained by the
Auction Agent is not quoted on an interest or discount basis, the Auction
Agent shall convert the quoted rate to an interest rate after consultation
with the Company as to the method of such conversion. Not later than 9:30
a.m. on each Auction Date for each series of Preferred Shares, the Auction
Agent shall notify the Company and the Broker-Dealers of the applicable
rate so determined and the Maximum Applicable Rate.
(ii) If the rate on which the Maximum Applicable
Rate is to be based is the 30-day "AA" Composite Commercial Paper Rate and
such rate is to be based on rates supplied by Commercial Paper Dealers and
one or more of the Commercial Paper Dealers shall not provide a quotation
for the determination of the 30-day "AA" Composite Commercial Paper Rate,
the Auction Agent shall immediately notify the Company so that the Company
can determine whether to select a Substitute Commercial Paper Dealer or
Substitute Commercial Paper Dealers to provide the quotation or quotations
not being supplied by any Commercial Paper Dealer or Commercial Paper
Dealers. The Company shall promptly advise the Auction Agent of any such
selection. If the Company does not select any such Substitute Commercial
Paper Dealer or Substitute Commercial Paper Dealers, then the rates shall
be supplied by the remaining Commercial Paper Dealer or Commercial Paper
Dealers.
(f) (i) The Auction Agent shall maintain by series a
current registry of the beneficial owners of the shares of both series of
Preferred Shares who shall constitute the Existing Holders 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 days following the date of
Closing a list of the initial Existing Holders of Series F28 Preferred
Shares and Series F7 Preferred Shares and the respective Broker-Dealer of
each such Existing Holder through which such Existing Holder purchased such
shares. The Auction Agent may rely upon, as evidence of the identities of
the Existing Holders, such list, the results of each Auction and notices
from any Existing Holder, the Agent Member of any Existing Holder or the
Broker-Dealer of any Existing Holder with respect to such Existing Holder's
transfer of any Preferred Shares to another Person.
(ii) In the event of any partial redemption of any
Series F28 Preferred Shares or Series F7 Preferred Shares, as the case may
be, upon notice by the Company to the Auction Agent of such partial
redemption, the Auction Agent shall promptly request the Securities
Depository to notify the Auction Agent of the identities of the Agent
Members (and the respective numbers of Preferred Shares) from the accounts
of which Preferred 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 next Auction with respect to
Preferred Shares of the series being partially redeemed, the Auction Agent
shall request each Agent Member so identified to disclose to the Auction
Agent (upon selection by such Agent Member of the Existing Holders whose
Preferred Shares are to be redeemed) the number of Preferred Shares of such
series of Preferred Shares 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. If necessary to
procure such information, the Auction Agent shall deliver to each Agent
Member a facsimile copy of the Purchaser's Letter of each Existing Holder
represented by such Agent Member, which authorizes and instructs such Agent
Member to release such information to the Auction Agent. In the absence of
receiving any such information with respect to an Existing Holder, from
such Existing Holder's Agent Member or otherwise, the Auction Agent may
continue to treat such Existing Holder as the beneficial owner of the
number of Series F28 Preferred Shares or Series F7 Preferred Shares shown
in the Auction Agent's registry of beneficial owners.
(iii) The Auction Agent shall register a transfer of
the beneficial ownership of Series F28 Preferred Shares or Series F7
Preferred Shares from an Existing Holder to another Person only if such
transfer is made to a Person that has delivered a signed Purchaser's Letter
to the Auction Agent and only if (A) such transfer is pursuant to an
Auction or (B) if such transfer is made other than pursuant to an Auction,
the Auction Agent has been notified in writing in a notice substantially in
the form of Exhibit D to the Broker-Dealer Agreement, by such Existing
Holder, the Agent Member of such Existing Holder, or the Broker-Dealer of
such Existing Holder of such transfer. The Auction Agent is not required to
accept any notice of transfer delivered for an Auction unless it is
received by the Auction Agent by 3:00 P.m. on the Business Day next
preceding the applicable Auction Date. The Auction Agent shall rescind a
transfer made on the registry of the beneficial owners of any Preferred
Shares if the Auction Agent has been notified in writing in a notice
substantially in the form of Exhibit E to the Broker-Dealer Agreement by
the Agent Member or the Broker-Dealer of any Person that (i) purchased any
Preferred Shares and the seller failed to deliver such shares or (ii) sold
any Preferred Shares and the purchaser failed to make payment to such
Person upon delivery to the purchaser of such shares.
(g) The Auction Agent may request that the
Broker-Dealers, as set forth in Section 3.2(c) of the Broker-Dealer
Agreements, provide the Auction Agent with a list of their respective
customers that such Broker-Dealers believe are Existing Holders of shares
of either series of Preferred Shares. 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 that the Auction Agent reserves the right to
disclose any such information if it is advised by its counsel that its
failure to do so would be unlawful.
2.3 Auction Schedule. The Auction Agent shall conduct
Auctions for both series of Preferred Shares 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 unreasonably
withheld. The Auction Agent shall give notice of any such change to each
Broker-Dealer. Such notice shall be received prior to the first Auction
Date on which any such change shall be effective.
Time Event -- By 9:30 a.m. Auction Agent advises the Company
and the Broker-Dealers of the Maximum Applicable Rate as determined from
the higher of the 30-day "AA" Composite Commercial Paper Rate and the
Taxable Equivalent of the Short-Term Municipal Bond Rate (except in the
case of a Special Dividend Period in which case the Maximum Applicable Rate
shall be the higher of the Special Dividend Period Reference Rate and the
Taxable Equivalent of the Short-Term Municipal Bond Rate) as set forth in
Section 2.2(e)(i) hereof.
9:30 a.m. - 1:00 p.m. Auction Agent assembles information
communicated to it by Broker-Dealers as provided in Paragraph 11(c)(i) of
the Articles Supplementary. Submission deadline is 1:00 P.m. Not earlier
than Auction Agent makes determination pursuant to 1:00 P.m. Paragraph
11(d)(i) of the Articles Supplementary. By approximately Auction Agent
advises Company of results of 3:00 P.m. Auction as provided in Paragraph
11(d)(ii) of the Articles Supplementary. Submitted Bids and Submitted Sell
Orders are accepted and rejected in whole or in part and shares of
Preferred Shares allocated as provided in Paragraph 11(e) of the Articles
Supplementary. Auction Agent gives notice of Auction results as set forth
in Section 2.4 hereof.
2.4 Notice of Auction Results. On each Auction Date, the
Auction Agent shall notify Broker-Dealers of the results of the Auction
held on such date by telephone or through the Auction Agent's Auction
Processing System as set forth in Paragraph (a) of the Settlement
Procedures.
2.5 Broker-Dealers. (a) Not later than 12:00 noon on each
Auction Date for both series of Preferred Shares, the Company shall pay to
the Auction Agent in New York Clearing House or similar next-day funds an
amount in cash equal to, (i) in the case of any Auction Date immediately
preceding any Dividend Period of 28 days or less, 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 365, times
(B) 1/4 of 1%, times (C) $50,000, times (D) the sum of the aggregate number
of outstanding shares of such series of Preferred Shares for which the
Auction is conducted and (ii) in the case of any Auction Date immediately
preceding any Dividend Period of more than 28 days, the amount determined
by mutual consent of the Company and the Broker-Dealer or Broker-Dealers
pursuant to Section 3.5 of the Broker-Dealer Agreements. The Auction Agent
shall apply such monies 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) Subject to Section 2.5(c) hereof, the Auction Agent
is hereby authorized by the Company to designate at any time or from time
to time any Person to act as a Broker-Dealer without the prior written
approval of the Company. The Auction Agent may designate an Affiliate of
the Company or of itself to act as a Broker-Dealer subject to Section
2.5(c) hereof.
(c) The Auction Agent shall terminate any Broker-Dealer
Agreement as set forth therein if so directed by the Company.
(d) Notwithstanding Section 2.5(b) hereof, no person may
act as a Broker-Dealer unless such person shall have entered into a
Broker-Dealer Agreement with the Auction Agent. (e) The Auction Agent shall
maintain a list of Broker-Dealers.
2.6 Ownership of Series F28 Preferred Shares and Series F7
Preferred Shares and Submission of Bids by Company and 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 an Existing Holder or Potential Holder. 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 an Existing Holder of any
Preferred Shares. Any Preferred Shares redeemed, purchased or otherwise
acquired (i) by the Company shall not be reissued 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 public
accountants 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,
accountant, 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), and such records shall, in reasonable detail,
accurately and fairly reflect the actions taken by the Auction Agent
hereunder. The Company agrees to keep any information regarding the
customers of any Broker-Dealer received from the Auction Agent in
connection with this Agreement or any Auction confidential and shall not
disclose such information or permit the disclosure of such information
without the prior written consent of the applicable Broker-Dealer to anyone
except such agent, accountant or counsel engaged to audit or review the
results of Auctions as permitted by this Section 2.7. Any such agent,
accountant or counsel, before having access to such information, shall
agree to keep such information confidential and not to disclose such
information or permit disclosure of such information without the prior
written consent of the applicable Broker-Dealer.
3. The Auction Agent as Paying Agent.
3.1 Paying Agent. The Board of Directors of the Company has
adopted a resolution appointing Bankers Trust Company as transfer agent,
registrar, dividend disbursing agent and redemption agent for the Company
in connection with any Preferred Shares (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 as Paying Agent with respect to the Preferred
Shares and as set forth in this Section 3.
3.2 The Company's Notices to Paying Agent. Whenever any
Preferred Shares are to be redeemed, the Company shall promptly deliver to
the Paying Agent the Notice of Redemption, which will be mailed by the
Company to each Holder, at least five days prior to the date such Notice of
Redemption is required to be mailed by the Articles Supplementary. The
Paying Agent shall have no responsibility to confirm or verify the accuracy
of any such notice.
3.3 Company to Provide Funds for Dividends and Redemptions
and Additional Dividends. (a) Not later than noon, on the Business Day
immediately preceding each Dividend Payment Date, the Company shall deposit
with the Paying Agent an aggregate amount of New York Clearing House or
similar next-day funds equal to the declared dividends to be paid to
Holders on such Dividend Payment Date and shall give the Paying Agent
irrevocable instructions to apply such funds to the payment of such
dividends on such Dividend Payment Date.
(b) If the Company shall give the Notice of Redemption
then, by noon of the Business Day immediately preceding the date fixed for
redemption, the Company shall deposit in trust with the Paying Agent an
aggregate amount of New York Clearing House or similar next day funds
sufficient to redeem such Preferred Shares called for redemption and shall
give the Paying Agent irrevocable instructions and authority to pay the
redemption price to the Holders of Preferred Shares called for redemption
upon surrender of the certificate or certificates therefor.
(c) If the Company provides notice to the Auction Agent
of a Retroactive Taxable Allocation, the Company shall, within 30 days
after such notice is given and by noon of the Business Day immediately
preceding the date fixed for payment of an Additional Dividend, deposit in
trust with the Paying Agent an aggregate amount of New York Clearing House
or similar next-day funds equal to such Additional Dividend and shall give
the Paying Agent irrevocable instructions and authority to pay the
Additional Dividends to Holders (or former Holders) of Preferred Shares
entitled thereto. 3.4 Disbursing Dividends, Redemption Price and Additional
Dividends. After receipt of the New York Clearing House or similar next-day
funds and instructions from the Company described in Sections 3.3(a), (b)
and (c) above, the Paying Agent shall pay to the Holders (or former
Holders) entitled thereto (i) on each corresponding Dividend Payment Date,
dividends on the Series F28 Preferred Shares or Series F7 Preferred Shares,
as the case may be, (ii) on any date fixed for redemption, the redemption
price of any Preferred Shares called for redemption and (iii) on the date
fixed for payment of an Additional Dividend, such Additional Dividend. The
amount of dividends for any Dividend Period to be paid by the Paying Agent
to Holders will be determined by the 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 Preferred Shares called for redemption will be
determined as set forth in Paragraph 4 of the Articles Supplementary. The
amount of Additional Dividends to be paid by the Paying Agent in the event
of a Retroactive Taxable Allocation to Holders will be determined by the
Company pursuant to paragraph 2(e) of the Articles Supplementary. The
Company shall notify the Paying Agent in writing of a decision to redeem
any Preferred Shares 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 the 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 on the amount thereof
set forth in the Notice of Redemption.
4. The Paying Agent as Transfer Agent and Registrar.
4.1 Original Issue of Stock Certificates. On the Date of
Original Issue, one certificate for all Series F28 Preferred Shares and one
certificate for all Series F7 Preferred Shares 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.
4.2 Registration of Transfer or Exchange of Preferred Shares.
Except as provided in this Section 4.2, the shares of each series of
Preferred Shares 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 each
series of Preferred Shares may, at the Company's request, be registered for
transfer or exchange, and new certificates thereupon shall be issued in the
name of the designated transferee or transferees, upon surrender of the old
certificates 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 or funds necessary for the payment of such taxes.
If the certificates for Preferred Shares are not held by the Securities
Depository or its nominee, payments upon transfer of shares in an Auction
shall be made in same-day funds to the Auction Agent against delivery of
certificates therefor.
4.3 Removal of Legend. Any request for removal of a legend
indicating a restriction on transfer from certificates evidencing Series
F28 Preferred Shares or Series F7 Preferred Shares shall be accompanied by
an opinion of counsel stating that such legend may be removed and such
shares transferred free of the restriction described in such legend, said
opinion to be delivered under cover of a letter from a Company Officer
authorizing the Paying Agent to remove the legend on the basis of said
opinion.
4.4 Lost Stock Certificates. The Paying Agent shall issue and
register replacement certificates for certificates represented to have been
lost, stolen or destroyed, upon the fulfillment of such requirements as
shall be deemed appropriate by the Company and 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
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 such
provisions of applicable law and the By-Laws and resolutions of the
Company.
4.5 Disposition of Cancelled Certificates; Record Retention.
The Paying Agent shall retain stock certificates which have been cancelled
in transfer or in exchange and accompanying documentation in accordance
with applicable rules and regulations of the Securities and Exchange
Commission for two calendar years from the date of such cancellation. The
Paying Agent shall 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 the expiration of this two-year period,
the Paying Agent shall deliver to the Company the cancelled certificates
and accompanying documentation. The Company shall, at its expense, retain
such records for a minimum additional period of four calendar years from
the date of delivery of the records to the 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 shall also undertake to
furnish to the Securities and Exchange Commission, upon demand, at either
the principal office or at any regional office, complete, correct and
current hard copies of any and all such records. Thereafter such records
shall not be destroyed by the Company without the approval of the Paying
Agent, which shall not be unreasonably withheld, but will be safely stored
for possible future reference.
4.6 Stock Register. The Paying Agent shall maintain the stock
register, which shall contain a list of the Holders, the number of
Preferred 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 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. The
Paying Agent reserves the right, however, to exhibit the stock register or
other records to any person in case it is advised by its counsel that its
failure to do so would (i) be unlawful or (ii) expose it to liability,
unless the Company shall have offered indemnification satisfactory to the
Paying Agent.
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 any series of Preferred
Shares, that remain with the Paying Agent after 12 months shall be repaid
to the Company upon the written request of the Company.
5. Representations and Warranties. (a) The Company represents and
warrants to the Auction Agent that:
(i) the Company is a duly incorporated and validly
existing 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 Series F28 Preferred Shares and the Series
F7 Preferred Shares;
(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 certificates evidencing the
Series F28 Preferred Shares and the Series F7 Preferred Shares comply with
all applicable laws of the State of Maryland
(v) the Series F28 Preferred Shares and the Series
F7 Preferred Shares have been duly and validly authorized by the Company
and, upon completion of the initial sale of the shares of each series of
Preferred Shares and receipt of payment therefor, will be validly issued,
fully paid and nonassessable;
(vi) the offering of the shares of Series F28
Preferred Shares and the shares of Series F7 Preferred Shares has been
registered under the Securities Act of 1933, as amended, and no 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 the issuance of the shares of any such series of
Preferred Shares except as required by applicable state securities or
insurance laws, all of which have been taken;
(vii) the execution and delivery of this Agreement
and the issuance and delivery of the Series F28 Preferred Shares and the
Series F7 Preferred Shares 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 the issuance of the shares of any series
of Preferred Shares.
(b) 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.
6. 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 provided by this Agreement.
(b) The Auction Agent undertakes to perform such duties
and only such duties as are specifically set forth in this Agreement, and
no implied covenants or obligations shall be read into this Agreement
against the Auction Agent.
(c) In the absence of bad faith or negligence on its
part, the Auction Agent shall not be liable for any action taken, suffered
or omitted or for any error of judgment made by it in the performance of
its duties under this Agreement. The Auction Agent shall not be liable for
any error of judgment made in good faith unless the Auction Agent shall
have been negligent in ascertaining (or failing to ascertain) the pertinent
facts.
6.2 Rights of the Auction Agent. (a) The Auction Agent may
rely and shall be protected in acting or refraining from acting upon any
communication authorized hereby and upon any written instruction, notice,
request, direction, consent, report, certificate, share certificate or
other instrument, paper or document reasonably believed by it to be
genuine. The Auction Agent shall not be liable for acting upon any
telephone communication authorized hereby which the Auction Agent believes
in good faith to have been given by the Company or by a Broker-Dealer. The
Auction Agent may record telephone communications with the Company or with
the Broker-Dealers or both.
(b) The Auction Agent may consult with counsel of its
choice, and the written advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance,
expend or risk its own funds or otherwise incur or become exposed to
financial liability in the performance of its duties hereunder.
(d) The Auction Agent may perform its duties and
exercise its rights hereunder either directly or by or through agents or
attorneys.
6.3 Auction Agent's Disclaimer. The Auction Agent makes no
representation as to the validity or adequacy of this Agreement, the
Broker-Dealer Agreements or the Preferred Shares.
6.4 Compensation, Expenses and Indemnification. (a) The
Company shall pay the Auction Agent from time to time reasonable
compensation for all services rendered by it under this Agreement and the
Broker-Dealer Agreements.
(b) The 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 the Broker-Dealer Agreements (including the reasonable
compensation, expenses and disbursements of its agents and counsel), except
any expense, disbursement and advances attributable to its negligence or
bad faith.
(c) The Company shall indemnify the Auction Agent for,
and hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with its agency under this Agreement and the Broker-Dealer
Agreements, including the costs and expenses of defending itself against
any claim or liability in connection with its exercise or performance of
any of its duties hereunder and thereunder, except such as may result from
its negligence or bad faith.
7. Miscellaneous.
7.1 Term of Agreement. (a) The term of this Agreement is
unlimited unless it shall be terminated as provided in this Section 7.1.
The Company may terminate this Agreement at any time by so notifying the
Auction Agent, provided that if any Preferred Shares remain outstanding the
Company has entered into an agreement in substantially the form of this
Agreement with a successor auction agent. The Auction Agent may terminate
this Agreement upon prior notice to the Company on the date specified in
such notice, which shall be no earlier than 60 days after the delivery of
such notice. If the Auction Agent resigns while any shares of Preferred
Shares 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, promptly deliver 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, promptly transfer to the Company or any
successor auction agent any funds deposited by the Company with the Auction
Agent (whether in its capacity as Auction Agent or Paying Agent) pursuant
to this Agreement which have not previously been distributed by the Auction
Agent in accordance with this Agreement.
7.2 Communications. Except for (i) communications authorized
to be made by telephone pursuant to this Agreement or the Auction
Procedures and (ii) communications in connection with Auctions (other than
those expressly required to be in writing), all notices, requests and other
communications to any party hereunder shall be in writing (including
telecopy or similar writing) and shall be given to such party addressed to
it at its address, or telecopy number set forth below:
If addressed to the Company:
The BlackRock New York
Insured Municipal 2008 Term Trust Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Treasurer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If addressed to the Auction Agent:
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Auction Rate Securities
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
or such other address or telecopy number as such party may hereafter
specify for such purpose by notice to the other party. Each such notice,
request or communication shall be effective when delivered at the address
specified herein. Communications shall be given on behalf of the 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, cancelled or waived, in
whole or in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. The Company shall
notify the Auction Agent of any change in the Articles Supplementary prior
to the effective date of any such change.
(b) Failure of either party hereto to exercise any right
or remedy hereunder in the event of a breach hereof by the other party
shall not constitute a waiver of any such right or remedy with respect to
any subsequent breach.
7.6 Successor and Assigns. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the respective
successors and permitted assigns of each of the 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
unreasonably withheld.
7.7 Severability. If any clause, provision or section hereof
shall be ruled invalid or unenforceable by any court of competent
jurisdiction, the invalidity or unenforceability of such clause, provision
or section shall not affect any of the remaining clauses, provisions or
sections hereof.
7.8 Execution in Counterparts. This Agreement may be executed
in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
7.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable
to agreements made and to be performed in said state.
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 BLACKROCK NEW
YORK INSURED MUNICIPAL 2008 TERM TRUST INC.
By: _________________________________
Xxxxx X. Xxxxxxxxxxx, President
BANKERS TRUST COMPANY
By: __________________________________
Xxxxx Xxxxxx, Assistant Treasurer
Annex A
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BROKER-DEALER AGREEMENT between BANKERS TRUST COMPANY
and
----------------------------------------------
Dated as of November 23, 1992
Relating to
AUCTION RATE MUNICIPAL PREFERRED STOCK (the "Preferred Shares")
SERIES F28 and SERIES F7 of THE BLACKROCK NEW YORK INSURED
MUNICIPAL 2008 TERM TRUST INC.
-----------------------------------------------------------------------------
BROKER-DEALER AGREEMENT dated as of November 23, 1992, between
Bankers Trust Company, a New York banking corporation (the "Auction Agent")
(not in its individual capacity but solely as agent of The BlackRock New
York Insured Municipal 2008 Term Trust Inc., a Maryland corporation (the
"Company"), pursuant to authority granted to it in the Auction Agent
Agreement dated as of November 23, 1992, between the Company and the
Auction Agent (the "Auction Agent Agreement")) and ______________ (together
with its successors and assigns hereinafter referred to as "BD"). The
Company has duly authorized and issued 855 shares of Auction Rate Municipal
Preferred Stock, Series F28 with a par value of $.0l per share and a
liquidation preference of $50,000 per share plus an amount equal to
accumulated but unpaid dividends (whether or not earned or declared) plus
the premium, if any, resulting from the designation of a Premium Call
Period ("Series F28 Preferred Shares") 855 shares of Auction Rate Municipal
Preferred Stock, Series F7, with a par value of $.0l per share and a
liquidation preference of $50,000 per share plus an amount equal to
accumulated but unpaid dividends (whether or not earned or declared) plus
the premium, if any, resulting from the designation of a Premium Call
Period ("Series F7 Preferred Shares"), each pursuant to the Company's
Articles Supplementary (as defined below). The Series F28 Preferred Shares
and the Series F7 Preferred Shares are sometimes herein together referred
to as the "Preferred Shares."
The Company's Articles Supplementary provide that the dividend
rate on the Series F28 Preferred Shares and the Series F7 Preferred Shares
for each Dividend Period therefor after the Initial Dividend Period shall
be the Applicable Rate therefor, which in each case, in general, 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 (as defined below). The Board of Directors of the
Company has adopted a resolution appointing Bankers Trust Company as
Auction Agent for purposes of the Auction Procedures, and pursuant to
Section 2.5(d) of the Auction Agent Agreement, the Company has authorized
and directed the Auction Agent to execute and deliver this Agreement. The
Auction Procedures require the participation of one or more Broker-Dealers.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the Auction Agent and BD agree as follows:
1. Definitions and Rules of Construction.
1.1 Terms Defined by Reference to the Articles Supplementary.
Capitalized terms not defined herein shall have the respective meanings
specified in the Articles Supplementary of the Company.
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) "Articles Supplementary" shall mean the Articles
Supplementary of the Company, establishing the powers, preferences and
rights of the Series F28 Preferred Shares and the Series F7 Preferred
Shares filed on November 18, 1992 in the office of the State Department of
Assessments and Taxation of the State of Maryland.
(b) "Auction" shall have the meaning specified in Section 3.1
hereof.
(c) "Auction Procedures" shall mean the Auction Procedures
that are set forth in Paragraph 11 of the Articles Supplementary.
(d) "Authorized Officer" shall mean each Senior Vice
President, Vice President, Assistant Vice President, Trust Officer,
Assistant Secretary and Assistant Treasurer 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 of
this Agreement in a communication to BD.
(e) "BD Officer" shall mean each officer or employee of BD
designated as a "BD Officer" for purposes of this Agreement in a
communication to the Auction Agent.
(f) "Broker-Dealer Agreement" shall mean this Agreement and
any substantially similar agreement between the Auction Agent and a
Broker-Dealer.
(g) "Purchaser's Letter" shall mean a letter addressed to the
Company, the Auction Agent and a Broker-Dealer, substantially in the form
attached hereto as Exhibit A.
(h) "Settlement Procedures" shall mean the Settlement
Procedures attached hereto as Exhibit B.
1.3 Rules of Construction. Unless the context or use indicates
another or different meaning or intent, the following rules shall apply to
the construction of this Agreement:
(a) Words importing the singular number shall include the
plural number and vice versa.
(b) The captions and headings herein are solely for
convenience of reference and shall not constitute a part of this Agreement
nor shall they affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto," and other words of
similar import refer to this Agreement as a whole. (d) All references
herein to a particular time of day shall be to New York City time.
2. Notification of Dividend Period and Advance Notice of
Allocation of Taxable Income.
(a) The provisions contained in paragraph 2 of the Articles
Supplementary concerning the notification of a Special Dividend Period will
be followed by the Auction Agent and BD 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 fully set forth herein.
(b) Whenever the Company intends to include any net capital
gains or other taxable income in any dividend on Preferred Shares, the
Company will notify the Auction Agent of the amount to be so included at
least five Business Days prior to the Auction Date on which the Applicable
Rate for such dividend is to be established. Whenever the Auction Agent
receives such notice from the Company, it will in turn notify BD, who, on
or prior to such Auction Date, will notify its Existing Holders and
Potential Holders believed to be interested in submitting an Order in the
Auction to be held on such Auction Date.
3. The Auction.
3.1 Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures. (a) 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 Series F28 Preferred Shares or the
Series F7 Preferred Shares as the case may be, for the next Dividend Period
therefor. Each periodic operation of such procedures is hereinafter
referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures
and the Settlement Procedures are incorporated herein by reference in their
entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions were fully set forth herein.
(c) BD is delivering herewith a Purchaser's Letter executed by
BD and, in the case of _______________ , a list of persons to whom BD will
initially sell the Series F28 Preferred Shares or the Series F7 Preferred
Shares, the number of shares of each such series of Preferred Shares BD
will sell to each such person and the number of shares of each such series
of Preferred Shares BD will hold for its own account. BD agrees to act as,
and assumes the obligations of and limitations and restrictions placed
upon, a Broker-Dealer under this Agreement. BD understands that other
Persons meeting the requirements specified in the definition of
"Broker-Dealer" contained in Paragraph 1 of the Articles Supplementary may
execute a Broker-Dealer Agreement and a Purchaser's Letter and participate
as Broker-Dealers in Auctions.
(d) BD and other Broker-Dealers may participate in Auctions
for their own accounts, provided that BD or such other Broker-Dealers, as
the case may be, has executed a Purchaser's Letter. However, the Company
may by notice to BD and all other Broker-Dealers prohibit all
Broker-Dealers from submitting Bids in Auctions for their own accounts,
provided that Broker-Dealers may continue to submit Hold Orders and Sell
Orders.
3.2 Preparation for Each Auction. (a) Not later than 9:30 A.m. on
each Auction Date for both series of Preferred Shares, the Auction Agent
shall advise BD by telephone of the Maximum Applicable Rate in effect on
such Auction Date as determined from the higher of the 30-day "AA"
Composite Commercial Paper Rate and the Taxable Equivalent of the
Short-Term Municipal Bond Rate (except in the case of a Special Dividend
Period in which case the Maximum Applicable Rate shall be determined from
the higher of the Special Dividend Period Reference Rate and the Taxable
Equivalent of the Short-Term Municipal Bond Rate.
(b) In the event that the Auction Date for any Auction shall
be changed after the Auction Agent has 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 BD 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. Thereafter, BD shall
promptly notify customers of BD that BD believes are Existing Holders of
Series F28 Preferred Shares or the Series F7 Preferred Shares, as the case
may be, of such change in the Auction Date.
(c) The Auction Agent from time to time may request BD to
provide it with a list of the respective customers BD believes are Existing
Holders of shares of Series F28 Preferred Shares or the Series F7 Preferred
Shares. BD shall comply with any such request, and 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 Company; and such
information shall not be used by the Auction Agent or its officers,
employees, agents or representatives for any purpose other than such
purposes as are described herein. The Auction Agent shall transmit any list
of customers BD believes are Existing Holders of Series F28 Preferred
Shares or the Series F7 Preferred Shares 5 and information related thereto
only to its officers, employees, agents or representatives in the Corporate
Trust and Agency Group who need to know such information for the purposes
of acting in accordance with this Agreement and shall prevent the
transmission of such information to others and shall cause its officers,
employees, agents and representatives to abide by the foregoing
confidentiality restrictions; provided, however, that the Auction Agent
shall have no responsibility or liability for the actions of any of its
officers, employees, agents or representatives after they have left the
employ of the Auction Agent.
(d) The Auction Agent is not required to accept the
Purchaser's Letter for any Potential Holder for an Auction unless it is
received by the Auction Agent by 3:00 P.m. on the Business Day next
preceding such Auction.
3.3 Auction Schedule; Method of Submission of Orders. (a) The
Company and the Auction Agent shall conduct Auctions for both series of
Preferred Shares 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 Company, which consent shall not be unreasonably withheld. The
Auction Agent shall give notice of any such change to BD. Such notice shall
be received prior to the first Auction Date on which any such change shall
be effective. Time Event By 9:30 A.m. Auction Agent advises the Company and
Broker-Dealers of the Maximum Applicable Rate as determined from the higher
of the 30-day "AA" Composite Commercial Paper Rate and the Taxable
Equivalent of the Short-Term Municipal Bond Rate (except in the case of a
Special Dividend Period in which case the Maximum Applicable Rate shall be
the higher of the Special Dividend 6 [Page] Period Reference Rate and the
Taxable Equivalent of the Short-Term Municipal Bond Rate) as set forth in
Section 3.2(a) hereof. 9:30 A.m. - 1:00 P.m. Auction Agent assembles
information communicated to it by Broker-Dealers as provided in Paragraph
11(c)(i) of the Articles Supplementary. Submission Deadline is 1:00 P.m.
Not earlier than 1:00 P.m. Auction Agent makes determinations pursuant to
Paragraph 11(d)(i) of the Articles Supplementary. By approximately 3:00
P.m. Auction Agent advises Company of results of Auction as provided in
Paragraph 11(d)(ii) of the Articles Supplementary. Submitted Bids and
Submitted Sell Orders are accepted and rejected in whole or in part and
shares of Preferred Shares are allocated as provided in Paragraph 11(e) of
the Articles Supplementary. Auction Agent gives notice of Auction results
as set forth in Section 3.4(a) hereof.
(b) BD agrees to maintain a list of Potential Holders and to
contact the Potential Holders on such list on or prior to each Auction Date
for the purposes set forth in Paragraph 11 of the Articles Supplementary.
(c) BD agrees not to sell, assign or dispose of any Series F28
Preferred Shares or the Series F7 Preferred Shares to any Person who has
not delivered a signed Purchaser's Letter to the Auction Agent.
(d) BD shall submit Orders to the Auction Agent in writing in
substantially the form attached hereto as Exhibit C. 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.
(e) BD shall deliver to the Auction Agent (i) a written
notice, substantially in the form attached hereto as Exhibit D, of
transfers of Series F28 Preferred Shares or Series F7 Preferred Shares made
through BD by an Existing Holder to another Person other than pursuant to
an Auction, and (ii) a written notice, substantially in the form attached
hereto as Exhibit E, of the failure of any Series F28 Preferred Shares or
Series F7 Preferred Shares to be transferred to or by any Person that
purchased or sold Series F28 Preferred Shares, Series F7 Preferred Shares
or 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
3:00 P.m. on the Business Day next preceding the applicable Auction Date.
3.4 Notice of Auction Results. (a) On each Auction Date, the
Auction Agent shall notify BD by telephone as set forth in paragraph (a) of
the Settlement Procedures. 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. If any Existing Holder selling
Preferred Shares in an Auction fails to deliver such shares, the BD of any
Person that was to have purchased Series F28 Preferred Shares or Series F7
Preferred Shares in such Auction may deliver to such Person a number of
whole shares of such Series F28 Preferred Shares or Series F7 Preferred
Shares, as the case may be, that is less than the number of shares that
otherwise was to be purchased by such Person. In such event, the number of
such Series F28 Preferred Shares or Series F7 Preferred Shares to be so
delivered shall be determined by such BD. Delivery of such lesser number of
shares shall constitute good delivery. Upon the occurrence of any such
failure to deliver shares, such BD shall deliver to the Auction Agent the
notice required by Section 3.3(e)(ii) hereof. Notwithstanding the foregoing
terms of this Section 3.4(b), any delivery or non-delivery of Series F28
Preferred Shares or the Series F7 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 3.3(e)(ii) hereof. The Auction Agent shall have no duty or
liability with respect to enforcement of this Section 3.4(b).
3.5 Service Charge to Be Paid to BD. On the Business Day next
succeeding each Auction Date for each series of Preferred Shares, the
Auction Agent shall pay to BD from moneys received from the Company an
amount equal to, (a) in the case of any Auction Date immediately preceding
any Dividend Period of 28 days or less, the product of (i) 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 365, times (ii) 1/4
of 1%, times (iii) $50,000, times (iv) the sum of (A) the aggregate number
of shares of such series of Preferred Shares placed by BD in the applicable
Auction that were (x) the subject of a Submitted Bid of an Existing Holder
submitted by BD and continued to be held as a result of such submission and
(y) the subject of a Submitted Bid of a Potential Holder submitted by BD
and were purchased as a result of such submission plus (B) the aggregate
number of shares of such series of Preferred Shares subject to valid Hold
Orders (determined in accordance with Paragraph 11 of the Articles
Supplementary) submitted to the Auction Agent by BD plus (C) the number of
shares of such series of Preferred Shares deemed to be subject to Hold
Orders by Existing Holders pursuant to Paragraph 11 of the Articles
Supplementary that were acquired by such Existing Holders through BD and
(b) in the case of any Auction Date immediately preceding any Dividend
Period of 35 days or more, that amount as mutually agreed on by the Company
and BD, based on 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. For the
purposes of calculating any such fee, Preferred Shares will be placed by a
Broker-Dealer if such shares were (i) the subject of Hold Orders deemed to
have been made by Existing Holders that were acquired by such Existing
Holders through such Broker-Dealer or (ii) the subject of the following
Orders submitted by such Broker-Dealer: (A) a Submitted Bid of an Existing
Holder that resulted in such Existing Holder continuing to hold such shares
as a result of the Auction, (B) a Submitted Bid of a Potential Holder that
resulted in such Potential Holder purchasing such shares as a result of the
Auction or (C) a Submitted Hold Order. For purposes of subclause (iv) (C)
of the foregoing sentence, if any Existing Holder who acquired Series F28
Preferred Shares or Series F7 Preferred Shares through BD transfers those
shares to another Person other than pursuant to an Auction, then the
Broker-Dealer for the shares so transferred shall continue to be BD,
provided, however, that if the transfer was effected by, or if the
transferee is, a Broker-Dealer other than BD, then such Broker-Dealer shall
be the Broker-Dealer for such shares.
4. The Auction Agent.
4.1 Duties and Responsibilities. (a) The Auction Agent is acting
solely as agent for the Company hereunder and owes no fiduciary duties to
any other Person by reason of this Agreement.
(b) The Auction Agent undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement, and no
implied covenants or obligations shall be read into this Agreement against
the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the
Auction Agent shall not be liable for any action taken, suffered, or
omitted or for any error of judgment made by it in the performance of its
duties under this Agreement. The Auction Agent shall not be liable for any
error of judgment made in good faith unless the Auction Agent shall have
been negligent in ascertaining (or failing to ascertain) the pertinent
facts.
4.2 Rights of the Auction Agent. (a) The Auction Agent may rely
and shall be protected in acting or refraining from acting upon any
communication authorized 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
telephone communication authorized by this Agreement which the Auction
Agent believes in good faith to have been given by the Company or by BD.
The Auction Agent may record telephone communications with BD.
(b) 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.
(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.
(d) The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys.
4.3 Auction Agent's Disclaimer. The Auction Agent makes no
representation as to the validity or adequacy of this Agreement or the
Series F28 Preferred Shares or the Series F7 Preferred Shares.
5. Miscellaneous.
5.1 Termination. Any party may terminate this Agreement at any
time upon five days' prior notice to the other party.
5.2 Agent Member. At the date hereof, BD is a participant of the
Securities Depository.
5.3 Communications. Except for (i) communications authorized to be
made by telephone pursuant to this Agreement or the Auction Procedures and
(ii) communications in connection with 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 (including
telecopy or similar writing) and shall be given to such party, addressed to
it, at its address or telecopy number set forth below:
If addressed to BD:
___________________________________
___________________________________
___________________________________
___________________________________
Attention:
Telecopier No.:
Telephone No.:
If addressed to the Agent:
Auction Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Rate Securities
Telecopier No.: (000) 000-0000
Telephone No.:(000) 000-0000
or such other address or telecopy number as such party may hereafter
specify for such purpose by notice to the other party. Each such notice,
request or communication shall be effective when delivered at the address
specified herein. Communications shall be given on behalf of BD by a BD
Officer and on behalf of the Auction Agent by an Authorized Officer. BD may
record telephone communications with the Auction Agent. 5.4 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.
5.4 Benefits. Nothing in this Agreement, express or implied, shall
give to any person, other than the Company, the Auction Agent and BD and
their respective successors and assigns, any benefit of any legal or
equitable right, remedy or claim under this Agreement.
5.5 Amendment; Waiver. (a) This Agreement shall not be deemed or
construed to be modified, amended, rescinded, cancelled or waived, in whole
or in part, except by a written instrument signed by a duly authorized
representative of the party to be charged.
(b) Failure of either party to this Agreement to exercise any
right or remedy hereunder in the event of a breach of this Agreement by the
other party shall not constitute a waiver of any such right or remedy with
respect to any subsequent breach.
5.6 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 BD and the Auction Agent. This Agreement
may not be assigned by either party hereto absent the prior written consent
of the other party; provided, however, that this Agreement may be assigned
by the Auction Agent to a successor Auction Agent selected by the Company
without the consent of BD.
5.7 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.
5.8 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. 6. 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.
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.
BANKERS TRUST COMPANY
By: __________________________________
Title: _______________________________
By: __________________________________
Title: _______________________________
EXHIBIT A
TO BE SUBMITTED TO YOUR BROKER-DEALER WHO WILL THEN DELIVER COPIES ON YOUR
BEHALF TO THE RESPECTIVE TRUST COMPANY OR REMARKETING AGENT.
MASTER PURCHASER'S LETTER Relating to Securities Involving Rate Settings
Through Auctions or Remarketings
THE COMPANY A REMARKETING AGENT THE TRUST COMPANY A BROKER-DEALER AN AGENT
MEMBER OTHER PERSONS
Dear Sirs:
1. This letter is designed to apply to publicly or privately offered
debt or equity securities ("Securities") of any issuer ("Company") which
are described in any final prospectus or other offering materials relating
to such Securities as the same may be amended or supplemented
(collectively, with respect to the particular Securities concerned, the
"Prospectus") and which involve periodic rate settings through auctions
("Auctions") or remarketing procedures ("Remarketings"). This letter shall
be for the benefit of any Company and of any trust company, auction agent,
paying agent (collectively, "trust company"), remarketing agent,
broker-dealer, agent member, securities depository or other interested
person in connection with any Securities and related Auctions or
Remarketings (it being understood that such persons may be required to
execute specified agreements and nothing herein shall alter such
requirements). The terminology used herein is intended to be general in its
application and not to exclude any Securities in respect of which (in the
Prospectus or otherwise) alternative terminology is used.
2. We may from time to time offer to purchase, purchase, offer to
sell and/or sell Securities of any Company as described in the Prospectus
relating thereto. We agree that this letter shall apply to all such
purchases, sales and offers and to Securities owned by us. We understand
that the dividend/interest rate on Securities may be based from time to
time on the results of Auctions or Remarketings as set forth in the
Prospectus.
3. We agree that any bid or sell order placed by us in an Auction or
a Remarketing shall constitute an irrevocable offer (except as otherwise
described in the Prospectus) by us to purchase or sell the Securities
subject to such bid or sell order, or such lesser amount of Securities as
we shall be required to sell or purchase as a result of such Auction or
Remarketing, at the applicable price, all as set forth in the Prospectus,
and that if we fail to place a bid or sell order with respect to Securities
owned by us with a broker-dealer on any Auction or Remarketing date, or a
broker-dealer to which we communicate a bid or sell order fails to submit
such bid or sell order to the trust company or remarketing agent concerned,
we shall be deemed to have placed a hold order with respect to such
Securities as described in the Prospectus. We authorize any broker-dealer
that submits a bid or sell order as our agent in Auctions or Remarketings
to execute contracts for the sale of Securities covered by such bid or sell
order. We recognize that the payment by such broker-dealer for Securities
purchased on our behalf shall not relieve us of any liability to such
broker-dealer for payment for such Securities.
4. We understand that in a Remarketing, the dividend or interest
rate or rates on the Securities and the allocation of Securities tendered
for sale between dividend or interest periods of different lengths will be
based from time to time on the determinations of one or more remarketing
agents, and we agree to be conclusively bound by such determinations. We
further agree to the payment of different dividend or interest rates to
different holders of Securities depending on the length of the dividend or
interest period elected by such holders. We agree that any notice given by
us to a remarketing agent (or to a broker-dealer for transmission to a
remarketing agent) of our desire to tender Securities in a Remarketing
shall constitute an irrevocable (except to the limited extent set forth in
the Prospectus) offer by us to sell the Securities specified in such
notice, or such lesser number of Securities as we shall be required to sell
as a result of such Remarketing in accordance with the terms set forth in
the Prospectus, and we authorize the remarketing agent to sell, transfer or
otherwise dispose of such Securities as set forth in the Prospectus.
5. We agree that, during the applicable period as described in the
Prospectus, dispositions of Securities can be made only in the
denominations set forth in the Prospectus and we will sell, transfer or
otherwise dispose of any Securities held by us from time to time only
pursuant to a bid or sell order placed in an Auction, in a Remarketing, to
or through a broker-dealer or, when permitted in the Prospectus, to a
person that has signed and delivered to the applicable trust company or a
remarketing agent a letter substantially in the form of this letter (or
other applicable purchaser's letter) provided that in the case of all
transfers other than pursuant to Auctions or Remarketings we or our
broker-dealer or our agent member shall advise such trust company or a
remarketing agent of such transfer. We understand that a restrictive legend
will be placed on certificates representing the Securities and
stop-transfer instructions will be issued to the transfer agent and/or
registrar, all as set forth in the Prospectus.
6. We agree that, during the applicable period as described in the
Prospectus, ownership of Securities shall be represented by one or more
global certificates registered in the name of the applicable securities
depository or its nominee that we will not be entitled to receive any
certificate representing the Securities and that our ownership of any
Securities will be maintained in book entry form by the securities
depository for the account of our agent member, which in turn will maintain
records of our beneficial ownership. We authorize and instruct our agent
member to disclose to the applicable trust company or remarketing agent
such information concerning our beneficial ownership of Securities as such
trust company or remarketing agent shall request.
7. We acknowledge that partial deliveries of Securities purchased in
Auctions or Remarketings may be made to us and such deliveries shall
constitute good delivery as set forth in the Prospectus.
8. This letter is not a commitment by us to purchase any Securities.
9. This letter supersedes any prior-dated version of this master
purchaser's letter, and supplements any prior or post-dated purchaser's
letter specific to particular Securities, and this letter may only be
revoked by a signed writing delivered to the original recipients hereof.
10. The descriptions of Auction or Remarketing procedures set forth
in each applicable Prospectus are incorporated by reference herein and in
case of any conflict between this letter, any purchaser's letter specific
to particular Securities and any such description, such description shall
control.
11. Any xerographic or other copy of this letter shall be deemed of
equal effect as a signed original.
12. Our agent member of The Depository Trust Company currently is
13. Our personnel authorized to place orders with broker-dealers for
the purposes set forth in the Prospectus in Auctions or Remarketings
currently is/are , telephone number ( )
14. Our taxpayer identification number is
15. In the case of each offer to purchase, purchase, offer to sell
or sale by us of Securities not registered under the Securities Act of
1933, as amended (the "Act"), we represent and agree as follows:
(A) We understand and expressly acknowledge that the
Securities have not been and will not be registered under the Act
and, accordingly, that the Securities may not be reoffered, resold
or otherwise pledged, hypothecated or transferred unless an
applicable exemption from the registration requirements of the Act
is available.
(B) We hereby confirm that any purchase of Securities
made by us will be for our own account, or for the account of one
or more parties for which we are acting as trustee or agent with
complete investment discretion and with authority to bind such
parties, and not with a view to any public resale or distribution
thereof. We and each other party for which we are acting which
will acquire Securities will be "accredited investors" within the
meaning of Regulation D under the Act with respect to the
Securities to be purchased by us or such party, as the case may
be, will have previously invested in similar types of instruments
and will be able and prepared to bear the economic risk of
investing in and holding such Securities.
(C) We acknowledge that prior to purchasing any
Securities we shall have received a Prospectus (or private
placement memorandum) with respect thereto and acknowledge that we
will have had access to such financial and other information, and
have been afforded the opportunity to ask such questions of
representatives of the Company and receive answers thereto, as we
deem necessary in connection with our decision to purchase
Securities.
(D) We recognize that the Company and broker-dealers will
rely upon the truth and accuracy of the foregoing investment
representations and agreements, and we agree that each of our
purchases of Securities now or in the future shall be deemed to
constitute our concurrence in all of the foregoing which shall be
binding on us and each party for which we are acting as set forth
in Subparagraph B above.
______________________________________
(Name of Purchaser)
By ___________________________________
Printed Name:
Title:
Dated:________________________________
Mailing Address of Purchaser
_______________________________
_______________________________
_______________________________
EXHIBIT B
SETTLEMENT PROCEDURES The following summary of Settlement Procedures
sets forth the procedures expected to be followed in connection with the
settlement of each Auction and will be incorporated by reference in the
Auction Agent Agreement and each Broker-Dealer Agreement. Nothing contained
in this Appendix constitutes a representation by the Trust that in each
Auction each party referred to herein will actually perform the procedures
described herein to be performed by such party. Capitalized terms used
herein shall have the respective meanings specified in the glossary of this
Prospectus or Appendix E to the Prospectus, as the case may be.
(a) On each Auction Date, the Auction Agent shall notify
by telephone the Broker-Dealers that participated in the Auction held on
such Auction Date and submitted an Order on behalf of any Existing Holder
or Potential Holder of:
(i) the Applicable Rate fixed for the next succeeding
Dividend Period;
(ii) whether Sufficient Clearing Bids existed for the
determination of the Applicable Rate;
(iii) if such Broker-Dealer (a "Seller's
Broker-Dealer") submitted a Bid or Sell Order on behalf of an Existing
Holder, the number of shares, if any, of Preferred Shares to be sold by
such Existing Holder;
(iv) if such Broker-Dealer (a "Buyer's
Broker-Dealer") submitted a Bid on behalf of a Potential Holder, the number
of shares, if any, of Preferred Shares to be purchased by such Potential
Holder;
(v) if the aggregate number of Preferred Shares to be
sold by all Existing Holders on whose behalf such Broker-Dealer submitted a
Bid or a Sell Order exceeds the aggregate number of Preferred Shares to be
purchased by all potential Holders on whose behalf such Broker-Dealer
submitted a Bid, the name or names of one or more Buyer's Broker-Dealers
(and the name of the Agent Member, if any, of each such Buyer's
Broker-Dealer) acting for one or more purchasers of such excess number of
Preferred Shares and the number of such shares to be purchased from one or
more Existing Holders on whose behalf such Broker-Dealer acted by one or
more Potential Holders on whose behalf each of such Buyer's Broker-Dealers
acted;
(vi) if the aggregate number of Preferred Shares to
be purchased by all Potential Holders on whose behalf such Broker-Dealer
submitted a Bid exceeds the aggregate number of Preferred Shares to be sold
by all Existing Holders on whose behalf such Broker-Dealer submitted a Bid
or a Sell Order, the name or names of one or more Seller's Broker-Dealers
(and the name of the Agent Member, if any, of each such Seller's
Broker-Dealer) acting for one or more sellers of such excess number of
Preferred Shares and the number of such shares to be sold to one or more
Potential Holders on whose behalf such Broker-Dealer acted by one or more
Existing Holders on whose behalf each of such Seller's Broker-Dealers
acted; and
(vii) the Auction Date of the next succeeding Auction
with respect to the Preferred Shares.
(b) On each Auction Date, each Broker-Dealer that
submitted an Order on behalf of any Existing Holder or Potential Holder
shall:
(i) in the case of a Broker-Dealer that is a Buyer's
Broker- Dealer, instruct each Potential Holder on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in part, to
instruct such Potential Holder's Agent Member to pay to such Broker-Dealer
(or its Agent Member) through the Securities Depository the amount
necessary to purchase the number of Preferred Shares to be purchased
pursuant to such Bid against receipt of such shares and advise such
Potential Holder of the Applicable Rate for the next succeeding Dividend
Period;
(ii) in the case of a Broker-Dealer that is a
Seller's Broker- Dealer, instruct each Existing Holder on whose behalf such
Broker-Dealer submitted a Sell Order that was accepted, in whole or in
part, or a Bid that was accepted, in whole or in part, to instruct such
Existing Holder's Agent Member to deliver to such Broker-Dealer (or its
Agent Member) through the Securities Depository the number of Preferred
Shares to be sold pursuant to such Order against payment therefor and
advise any such Existing Holder that will continue to hold Preferred Shares
of the Applicable Rate for the next succeeding Dividend Period;
(iii) advise each Existing Holder on whose behalf
such Broker-Dealer submitted a Hold Order of the Applicable Rate for the
next succeeding Dividend Period;
(iv) advise each Existing Holder on whose behalf such
Broker-Dealer submitted an Order of the Auction Date for the next
succeeding Auction; and
(v) advise each Potential Holder on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in part, of
the Auction Date for the next succeeding Auction.
(c) On the basis of the information provided to it
pursuant to (a) above, each Broker-Dealer that submitted a Bid or a Sell
Order on behalf of a Potential Holder or an Existing Holder shall, in such
manner and at such time or times as in its sole discretion it may
determine, allocated any funds received by it pursuant to (b)(i) above and
any Preferred Shares received by it pursuant to (b)(ii) above among the
Potential Holders, if any, on whose behalf such Broker-Dealer submitted
Bids, the Existing Holders, if any, on whose behalf such Broker-Dealer
submitted Bids that were accepted or Sell Orders, and any Broker-Dealer or
Broker-Dealers identified to it by the Auction Agent pursuant to (a)(v) or
(a)(vi) above.
(d) On each Auction Date:
(i) each Potential Holder and Existing Holder shall
instruct its Agent Member as provided in (b)(i) or (ii) above, as the case
may be;
(ii) each Seller's Broker-Dealer which is not an
Agent Member of the Securities Depository shall instruct its Agent Member
to (A) pay through the Securities Depository to the Agent Member of the
Existing Holder delivering shares to such Broker-Dealer pursuant to (b)(ii)
above the amount necessary to purchase such shares against receipt of such
shares, and (B) deliver such shares through the Securities Depository to a
Buyer's Broker-Dealer (or its Agent Member) identified to such Seller's
Broker-Dealer pursuant to (a)(v) above against payment therefor; and (iii)
each Buyer's Broker-Dealer which is not an Agent Member of the Securities
Depository shall instruct its Agent Member to (A) pay through the
Securities Depository to a Seller's Broker-Dealer (or its Agent Member)
identified pursuant to (a)(vi) above the amount necessary to purchase the
shares to be purchased pursuant to (b)(i) above against receipt of such
shares, and (B) deliver such shares through the Securities Depository to
the Agent Member of the purchaser thereof against payment therefor.
(e) On the day after the Auction Date:
(i) each Bidder's Agent Member referred to in (d)(i)
above shall instruct the Securities Depository to execute the transactions
described under (b)(i) or (ii) above, and the Securities Depository shall
execute such transactions;
(ii) each Seller's Broker-Dealer or its Agent Member
shall instruct the Securities Depository to execute the transactions
described in (d)(ii) above, and the Securities Depository shall execute
such transactions; and
(iii) each Buyer's Broker-Dealer or its Agent Member
shall instruct the Securities Depository to execute the transactions
described in (d)(iii) above, and the Securities Depository shall execute
such transactions.
(f) If an Existing Holder selling Preferred Shares in an
Auction fails to deliver such shares (by authorized book-entry), a
Broker-Dealer may deliver to the Potential Holder on behalf of which it
submitted a Bid that was accepted a number of whole Preferred Shares that
is less than the number of shares that otherwise was to be purchased by
such Potential Holder. In such event, the number of Preferred Shares to be
so delivered shall be determined solely by such Broker-Dealer. Delivery of
such lesser number of shares shall constitute good delivery.
Notwithstanding the foregoing terms of this paragraph (f), any delivery or
non-delivery of shares which shall represent 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 provisions of the Auction
Agent Agreement and the Broker-Dealer Agreements.
EXHIBIT C
BANKERS TRUST COMPANY
AUCTION BID FORM
Submit To:
Bankers Trust Co.
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telephone (000) 000-0000
Facsimile (000) 000-0000
Issue: The BlackRock New York Insured Municipal 2008 Term Trust Inc. Series:
________________________
Auction Date:_____________________________
Auction Rate Securities
The undersigned Broker-Dealer submits the following Order on
behalf of the Bidder listed below:
Name of Bidder: ______________________
EXISTING HOLDER
Shares now held __________
HOLD _____________________
BID at rate of _____________________
SELL _____________________
POTENTIAL HOLDER # of shares bid _____________________
BID at rate of _____________________
Notes:
(1) If submitting more than one Bid for one Bidder, use additional
Auction Bid Forms.
(2) If one or more Bids covering in the aggregate more than the
number of outstanding 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 on the above
issue.
(3) A Hold or Sell may be placed only by an Existing Holder
covering a number of shares not greater than the number of
shares currently held.
(4) Potential Holders may make only Bids, 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%). Fractions will not accepted.
NAME OF BROKER-DEALER ___________________________
Authorized Signature ___________________________
EXHIBIT D
(To be used only for transfers made other than pursuant to an Auction).
TRANSFER FORM Re: The BlackRock New York Insured Municipal 2008 Term
Trust Inc. Series [F28] [F7] Preferred Shares (the "Preferred Shares")
We are (check one):
|_| the Existing Holder named below;
|_| the Broker-Dealer for such Existing Holder; or
|_| the Agent Member for such Existing Holder.
We hereby notify you that such Existing Holder has transferred _____ shares
of [Series F28] [Series F7] Preferred Shares to __________.
_________________________________
(Name of Existing Holder)
_________________________________
(Name of Broker-Dealer)
_________________________________
(Name of Agent Member)
By:______________________________
Printed Name:
Title:
EXHIBIT E
(To be used only for failures to deliver Preferred Shares sold pursuant to
an Auction)
NOTICE OF A FAILURE TO DELIVER
Complete either I or II.
I. We are a Broker-Dealer for _________________ (the "Purchaser"),
which purchased _______ Series [F28][F7] Preferred Shares of The BlackRock
New York Insured Municipal 2008 Term Trust Inc. in the Auction held on
___________ from the seller of such shares.
II. We are a Broker-Dealer for _________________ (the "Seller"),
which sold _______ Series [F28][F7] Preferred Shares of The BlackRock New
York Insured Municipal 2008 Term Trust Inc. in the Auction held on
____________ to the Purchaser of such shares.
We hereby notify you that (check one)
|_| _____ the Seller failed to deliver such shares to the Purchaser
|_| _____ the Purchaser failed to make payment to the Seller upon
delivery of such shares
Name:______________________________
(Name of Broker-Dealer)
By: _____________________________
Printed Name:
Title:
