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BROKER-DEALER AGREEMENT
AMONG
THE BANK OF NEW YORK
AS AUCTION AGENT
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
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AS BROKER-DEALER
DATED AS OF [ ], 2001
RELATING TO
AUCTION MARKET PREFERRED SHARES OF
BLACKROCK NEW YORK MUNICIPAL 2018 TERM TRUST
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BROKER-DEALER AGREEMENT dated as of [ ], 2001 (this "Agreement"),
relating to Auction Market Preferred Shares of BlackRock New York Municipal 2018
Term Trust (the "Trust") among (i) The Bank of New York, a New York banking
corporation, as auction agent (the "Auction Agent") (not in its individual
capacity but solely as agent) pursuant to authority granted to it in the Auction
Agent Agreement, and (ii) each broker-dealer whose name appears on the signature
page hereof, as broker-dealer (together with its successors and assigns as such
hereinafter referred to as "BD").
The Trust intends to issue shares of one or more series of Auction Market
Preferred Shares, liquidation preference $25,000 per share (the "AMPS"). The
shares of each series of AMPS shall be issued in book-entry form through the
facilities of the Securities Depository. References to "Shares of AMPS" or
"AMPS" in this Agreement shall refer only to the beneficial interests in the
AMPS unless the context otherwise requires.
The Auction Procedures require the participation of a Broker-Dealer.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Auction Agent, the Trust and BD
agree as follows:
1. DEFINITIONS AND RULES OF CONSTRUCTION
1.1 TERMS DEFINED BY STATEMENT OF PREFERENCES. Capitalized
terms not defined herein shall have the respective meanings specified in the
Statement.
1.2 TERMS DEFINED HEREIN. As used herein and in the Settlement
Procedures, the following terms shall have the following meanings, unless the
context otherwise requires:
"Agent Member" of any Person shall mean the member of, or
participant in, the Securities Depositary that will act on behalf of a Bidder.
"Agreement" with respect to the Trust shall mean this
Agreement as may be amended in writing with written consent of the Trust.
"AMPS" shall mean the preferred shares, par value $.001 per
share, of the Trust designated as its "Auction Market Preferred Shares" and
bearing such further designation as to series as the Board of Trustees, as the
case may be, of the Trust or any committee thereof shall specify.
"Auction" shall have the meaning specified in Section 2.1
hereof.
"Auction" Procedures" shall mean the auction procedures
constituting Part II of the form of Statement as of the filing thereof.
"Authorized Officer" of the Auction Agent shall mean each
Vice President, Assistant Vice President 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 Trust.
"Settlement Procedures" shall mean the Settlement
Procedures attached to the Auction Agent Agreement as Exhibit B.
"Statement" shall mean the Statement of Preferences of
Auction Market Preferred Shares, as the same may be amended, supplemented or
modified from time to time.
"Trust Officer" shall mean the Chairman and Chief Executive
Officer, the President, each Vice President (whether or not designated by a
number or word or words added before or after the title "Vice President"), the
Secretary, the Treasurer, each Assistant Vice President and each Assistant
Treasurer of the Trust and every other officer or employee of the Trust
designated as a "Trust Officer" for purposes hereof in a notice to the Auction
Agent.
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:
Words importing the singular number shall include the
plural number and vice versa.
The captions and headings herein are solely for convenience
of reference and shall not constitute a part of this Agreement nor shall they
affect its meaning, construction or effect.
The words "hereof," "herein," "hereto," and other words of
similar import refer to this Agreement as a whole.
All references herein to a particular time of day shall be
to New York City time.
This Agreement shall apply separately but equally to all
series of AMPS that may be issued. Section 1 and 2 hereof shall be read in
conjunction with the Statement and in the event of any conflict with the
Statement, the Statement shall take precedence.
1.4 WARRANTIES OF BD. BD hereby represents and warrants that
this Broker-Dealer Agreement has been duly authorized, executed and delivered by
BD and that, assuming the due authorization, execution and delivery hereof by
the Auction Agent, this Broker-Dealer Agreement constitutes a valid and binding
agreement of BD, enforceable against it in accordance with its terms. BD's
representations and warranties in this Section 1.4 shall survive the termination
of this Agreement.
2. THE AUCTIONS
2.1 PURPOSE; INCORPORATION BY REFERENCE OF AUCTION PROCEDURES
AND SETTLEMENT PROCEDURES.
On each Auction Date, the provisions of the Auction
Procedures will be followed by the Auction Agent for the purpose of determining
the Applicable Rate for the AMPS for the next Dividend Period. Each periodic
implementation of such procedures is hereinafter referred to as an "Auction."
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All of the provisions contained in the Auction Procedures
and the Settlement Procedures are incorporated herein by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions were fully set forth herein.
BD agrees to act as, and assumes the obligations of and
limitations and restrictions placed upon, a Broker-Dealer under this Agreement.
BD acknowledges and agrees that each provision of the
Auction Procedures that requires BD to perform an obligation or procedure is
hereby incorporated herein by reference and that this Agreement shall constitute
the Trust's instruction, and BD hereby agrees, to perform such obligations and
procedures without further request by or instructions from the Trust.
BD may participate in Auctions for its own account.
2.2 PREPARATION FOR EACH AUCTION.
(a) Not later than 9:30 a.m. on each Auction Date, the
Auction Agent shall advise BD by telephone and shall confirm in writing, which
includes email or other electronic means, of the Maximum Rate, Reference Rate(s)
and Treasury Note Rate(s).
(b) BD shall cause the Maximum Rate to be communicated
as promptly as practicable to its customers who hold or may be interested in
acquiring AMPS.
(c) As promptly as practicable after determining each
Auction Date, but not later than 9:15 a.m. on the Business Day preceding such
Auction Date, the Auction Agent shall notify BD, by such means as the Auction
Agent deems practicable, of the scheduled date of such Auction Date. If the
Auction Date for any Auction shall be changed after the Auction Agent has given
such notice or the notice referred to in clause (vii) of paragraph (a) of the
Settlement Procedures, the Auction Agent, by such means as the Auction Agent
deems practicable, shall give notice of such change to BD not later than the
earlier of (x) 9:15 a.m. on the Business Day preceding the new Auction Date, and
(y) 9:15 a.m. on the original Auction Date. Thereafter, BD shall promptly notify
customers of BD that are Existing Holders of such change in the Auction Date.
(d) If required by applicable law, or requested by the
Auction Agent, BD shall provide a list of Existing Holders based upon inquiries
of those Persons such Broker-Dealer believes are Beneficial Owners as a result
of the most recent Auction to the Auction Agent promptly after any date so
requested by the Auction Agent. The Auction Agent shall keep confidential any
such information, including information received as to the identity of Bidders
in any Auction, and shall not disclose any such information so provided to any
Person other than the other parties hereto, provided that the Auction Agent each
reserves the right to disclose any such information if (a) it is ordered to do
so by a court of competent jurisdiction or a regulatory, judicial or
quasi-judicial agency, (b) it is advised by its counsel that its failure to do
so would be unlawful or (c) failure to do so would expose the Auction Agent to
loss, liability, claim, damage or expense for which it has not received
indemnity satisfactory to it.
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(e) BD agrees to maintain a list of customers relating
to a series of AMPS and to use its best efforts, subject to existing laws and
regulations, to contact the customers on such list whom BD believes may be
interested in participating in the Auction on each Auction Date, as a Potential
Holder or a Potential Beneficial Owner, for the purposes set forth in the
Auction Procedures. Nothing herein shall require BD to submit an Order for any
customer in any Auction.
(f) The Auction Agent's registry of Existing Holders of
shares of a series of AMPS shall be conclusive and binding on BD. BD may inquire
of the Auction Agent between 3:00 P.M. on the Business Day preceding an Auction
for shares of a series of AMPS and 9:30 A.M. on the Auction Date for such
Auction to ascertain the number of shares of such series in respect of which the
Auction Agent has determined BD to be an Existing Holder. If BD believes it is
the Existing Holder of fewer shares of such series than specified by the Auction
Agent in response to BD's inquiry, BD may so inform the Auction Agent of that
belief. BD shall not, in its capacity as Existing Holder of shares of such
series, submit Orders in such Auction in respect of shares of such series
covering in the aggregate more than the number of shares of such series
specified by the Auction Agent in response to BD's inquiry.
2.3 AUCTION SCHEDULE; METHOD OF SUBMISSION OF ORDERS.
The Auction Agent shall conduct Auctions in accordance with
the schedule set forth below. Such schedule may be changed at any time by the
Auction Agent with the consent of the Trust, which consent shall not be
unreasonably withheld. The Auction Agent shall give written notice of any such
change to BD which shall have the right to review such change. Such notice shall
be received one Business Day prior to the first Auction Date on which any such
change shall be effective.
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TIME EVENT
By 9:30 a.m. Auction Agent advises the Trust and the
Broker-Dealer of the applicable Maximum Rate and
the Reference Rate(s) and Treasury Note Rate(s) as
set forth in Section 2.2(a) hereof.
9:30 a.m. - 1:30 p.m. Auction Agent assembles information communicated to
it by Broker-Dealer as provided in Section 2(a) of
the Auction Procedures. Submission Deadline is 1:30
p.m.
Not earlier than 1:30 p.m. Auction Agent makes determinations pursuant to 3(a)
of the Auction Procedures.
By approximately 3:30 p.m. Auction Agent advises the Trust of results of
Auction as provided in Section 3(b) of the Auction
Procedures. Submitted Bids and Submitted Sell
Orders are accepted and rejected in whole or in
part and AMPS are allocated as provided in Section
4 of the Auction Procedures. Auction Agent gives
notice of Auction results as set forth in paragraph
(a) of the Settlement Procedures.
BD may designate one or more individuals in its
organization who will coordinate its procedures in connection with Auctions and
purchases and sales of shares of any series of AMPS.
BD agrees to handle its customers' order in accordance with
its duties under applicable securities laws and rules.
To the extent that pursuant to Section 4 of the Auction
Procedures of the Trust, BD continues to hold, sells or purchases a number of
shares that is fewer than the number of shares in an Order submitted by BD to
the Auction Agent in which BD designated itself as an Existing Holder or
Potential Holder in respect of customer Orders, BD shall make appropriate pro
rata allocations among its customers for which it submitted Orders of similar
tenor. If as a result of such allocations, any Beneficial Owner would be
entitled or required to sell, or any Beneficial Owner would be entitled or
required to purchase, a fraction of a Share of AMPS on any Auction Date, BD
shall, in such manner as it shall determine in its sole discretion, round up or
down the number of AMPS to be purchased or sold on such Auction Date by any
Beneficial
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Owner or Potential Beneficial Owner on whose behalf BD submitted an Order so
that the number of shares so purchased or sold by each such Beneficial Owner or
Potential Beneficial Owner on such Auction Date shall be whole shares.
BD shall submit Orders to the Auction Agent in writing in
substantially the form attached hereto as Exhibit A. BD shall submit separate
Orders to the Auction Agent for each Potential Holder or Existing Holder on
whose behalf BD is submitting an Order and shall not net or aggregate the Orders
of Potential Holders or Existing Holders on whose behalf BD is submitting
Orders.
BD shall deliver to the Auction Agent a written notice,
substantially in the form attached hereto as Exhibit B, of transfers of AMPS
made through BD by an Existing Holder to another Person other than pursuant to
an Auction and a written notice, substantially in the form attached hereto as
Exhibit C, of the failure of any AMPS to be transferred to or by any Person that
purchased or sold AMPS through BD pursuant to an Auction. The Auction Agent is
not required to accept any notice delivered pursuant to the terms of the
foregoing sentence with respect to an Auction unless it is received by the
Auction Agent by 3:30 p.m. on the Business Day next preceding the applicable
Auction Date.
2.4 NOTICES.
On each Auction Date, the Auction Agent shall notify BD by
telephone or facsimile (or other electronic means acceptable to both parties) of
the results of the Auction as set forth in paragraph (a) of the Settlement
Procedures. By approximately 11:30 A.M. on the Business Day next succeeding such
Auction Date, the Auction Agent shall notify BD in writing of the disposition of
all Orders submitted by BD in the Auction held on such Auction Date.
(b) BD shall notify each Existing Holder or Potential
Holder on whose behalf BD has submitted an Order as set forth in paragraph (b)
of the Settlement Procedures and take such other action as is required of BD
pursuant to the Settlement Procedures.
2.5 DESIGNATION OF SPECIAL RATE PERIOD.
If the Trust delivers to its Auction Agent a notice of the
Auction Date for any series of AMPS of the Trust for a Rate Period thereof that
next succeeds a Rate period that is not a Minimum Rate Period in the form of
Exhibit C to the Auction Agency Agreement, and BD is a Broker-.Dealer of such
series, the Auction Agent shall deliver such notice to BD as promptly as
practicable after its receipt of such notice from the Trust.
If the Board of Trustees of the Trust proposes to designate
any succeeding Subsequent Rate Period of any series of AMPS of the Trust as a
Special Rate Period and the Trust delivers to its Auction Agent a notice of such
proposed Special Rate Period in the form of Exhibit D to the Auction Agency
Agreement, and BD is a Broker-Dealer for such series, such Auction Agent shall
deliver such notice to BD as promptly as practicable after its receipt of such
notice from the Trust.
If the Board of Trustees of the Trust determines to
designate such succeeding Subsequent Rate Period as a Special Rate Period, and
the Trust delivers to its Auction Agent a notice of such Special Rate Period in
the form of Exhibit E to the Auction
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Agency Agreement not later than 11:00 A.M. on the second Business Day next
preceding the first day of such Rate Period, and BD is a Broker-Dealer for such
series, such Auction Agent shall deliver such notice to BD not later than 3:00
P.M. on such second Business Day.
If the Trust shall deliver to its Auction Agent a notice
not later than 11:00 A.M. on the second Business Day next preceding the first
day of any Rate Period stating that the Trust has determined not to exercise its
option to designate such succeeding Subsequent Rate Period as a Special Rate
Period, in the form of Exhibit F to the Auction Agency Agreement, or shall fail
to timely deliver either such notice or a notice in the form of Exhibit E to the
Auction Agency Agreement, and BD is a Broker-Dealer for such series, such
Auction Agent shall deliver a notice in the form of Exhibit F to the Auction
Agency Agreement to BD not later than 3:00 P.M. on such second Business Day.
2.6 ALLOCATION OF TAXABLE INCOME.
If the Trust delivers to its Auction Agent a notice in the
form of Exhibit I to the Auction Agency Agreement designating all or a portion
of any dividend on shares of any series of AMPS of the Trust to consist of net
capital gains or other income taxable for Federal income tax purposes, and BD is
a Broker-Dealer for such series, such Auction Agent shall deliver such notice to
BD on the Business Day following its receipt of such notice from the Trust. On
or prior to the Auction Date referred to in such notice, BD will contact each of
its customers that is a Beneficial Owner of shares of such series of AMPS or a
Potential Beneficial Owner of shares of such series of AMPS interested in
submitting an Order in the Auction to be held on such Auction Date, and BD will
notify such Beneficial Owners and Potential Beneficial Owners of the contents of
such notice. BD will be deemed to have notified such Beneficial Owners and
Potential Beneficial Owners if, for each of them, (i) BD makes a reasonable
effort to contact such Beneficial Owner or Potential Beneficial Owner by
telephone, and (ii) upon failing to contact such Beneficial Owner or Potential
Beneficial Owner by Telephone BD mails written notification to such Beneficial
Owner or Potential Beneficial Owner at the mailing address indicated in the
account records of BD.
The Auction Agent for any series of AMPS shall be required
to notify BD if it is a Broker-Dealer for such series within two Business Days
after each Auction of such series of the Auction Agent's receipt of notice from
the Trust that such Auction involves an allocation of income taxable for Federal
income tax purposes as to the dollar amount per share of such taxable income and
income exempt from Federal income taxation included in the related dividend.
2.7 FAILURE TO DEPOSIT.
If: (i) any Failure to Deposit shall have occurred with
respect to shares of any series of AMPS of the Trust during any Rate Period
thereof (other than any Special Rate Period of Rate Period Days or any Rate
Period succeeding any Special Rate Period of more than 364 Rate Period Days
during which a Failure to deposit occurred that has not been cured), but, prior
to 12:00 Noon, New York City time, on the third Business Day next succeeding the
date on which such Failure to Deposit occurred, such Failure to Deposit shall
have been cured in accordance with Section 2.8 of the Auction Agency Agreement
and the Trust shall have paid to the Auction Agent for such series the
applicable Late Charge as described in Section 2.8 of the Auction Agency
Agreement, then, if BD is a Broker-Dealer for such series, such Auction Agent
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shall deliver a notice in the form of Exhibit G to the Auction Agency Agreement
by first-class mail, postage prepaid, to BD not later than one Business Day
after its receipt of the payment from the Trust curing such Failure to Deposit
and such Late Charge.
If: (i) any Failure to Deposit shall have occurred with
respect to shares of any series of AMPS of the Trust during any Rate Period
thereof (other than any Special Rate Period of more than 364 Rate Period Days or
any Rate Period succeeding any Special Rate Period of more than 364 Rate Period
Days during which a Failure to Deposit occurred but has not been cured), and,
prior to 12:00 Noon, New York City time, on the third Business Day next
succeeding the date on which such Failure to Deposit occurred, such Failure to
Deposit shall not have been cured as described in Section 2.8 of the Auction
Agency Agreement or the Trust shall not have paid to the Auction Agent for such
series the applicable Late Charge described in Section 2.8 of the Auction Agency
Agreement; or (ii) any Failure to Deposit shall have occurred with respect to
shares of any series of AMPS of the Trust during a Special Rate Period thereof
of more than 364 Rate Period Days, or during any Rate Period thereof succeeding
any Special Rate Period of more than 364 Rate Period Days during which a Failure
to Deposit occurred that has not been cured, and, prior to 12:00 noon, New York
City time, on the fourth Business Day preceding the Auction Date for the Rate
Period subsequent to such Rate Period, such Failure to Deposit shall not have
been cured as described in Section 2.8 of the Auction Agency Agreement of the
Trust shall not have paid to the Auction Agent for such series the applicable
Late Charge described in Section 2.8 of the Auction Agency Agreement; then such
Auction Agent shall deliver a notice in the form of Exhibit H to the Auction
Agency Agreement to the Broker-Dealers for such series not later than one
Business Day after the receipt of the payment from the Trust curing such Failure
to Deposit and Late Charge.
2.8 SERVICE CHARGE TO BE PAID TO BD.
No later than 12:00 noon on each Dividend Payment Date, the
Auction Agent after each Auction will pay a service charge from funds provided
by the Trust to each Broker-Dealer on the basis of the purchase price of AMPS
placed by such Broker-Dealer at such Auction. The service charge shall be (i) in
the case of any Auction Date immediately preceding a seven-day Dividend Period,
the product of (A) a fraction the numerator of which is the number of days in
such Dividend Period (calculated by counting the date of original issue of such
shares to but excluding the next succeeding dividend payment date of such
shares) and the denominator of which is 365, times (B) 1/4 of 1%, times (C)
$25,000 times (D) the sum of the aggregate number of shares of outstanding AMPS
for which the Auction is conducted and (ii) in the case of any Special Dividend
Period the amount determined by mutual consent of the Trust and any such
Broker-Dealers and shall be based upon a selling concession that would be
applicable to an underwriting of fixed or variable rate AMPS with a similar
final maturity or variable rate dividend period, respectively, at the
commencement of the Dividend Period with respect to such Auction.
If the Trust determines to change the rate at which the
Broker-Dealer Fee accrues, the Trust shall mail to the Auction Agent a notice
thereof within two Business Days of such change. Any change in the Broker-Dealer
Fee Rate shall be effective on the Auction Date next succeeding the Auction
Agent's receipt of notice of such change.
2.9 SETTLEMENT.
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If any Existing Holder selling AMPS in an Auction fails to
deliver such AMPS (by authorized book-entry), the BD of any Person that was to
have purchased AMPS in such Auction may deliver to such Person a number of
Shares of AMPS that is less than the number of Shares of AMPS that otherwise
were to be purchased by such Person. In such event, the number of Shares of AMPS
to be so delivered shall be determined by BD. Delivery of such lesser number of
Shares of AMPS shall constitute good delivery. Upon the occurrence of any such
failure to deliver Shares of AMPS, BD shall deliver to the Auction Agent the
notice required by Section 2.3(c)(ii) hereof. Notwithstanding the foregoing
provisions of this Section 2.9(a), any delivery or non delivery of AMPS which
represents any departure from the results of an Auction, as determined by the
Auction Agent, shall be of no effect unless and until the Auction Agent shall
have been notified of such delivery or non-delivery in accordance with the terms
of Section 2.3(c)(ii) hereof. The Auction Agent shall have no duty or liability
with respect to enforcement of this Section 2.9(a).
Neither the Auction Agent nor the Trust shall have any
responsibility or liability with respect to the failure of an Existing Holder, a
Potential Holder or an Agent Member or any of them to deliver AMPS or to pay for
AMPS sold or purchased pursuant to the Auction Procedures or otherwise.
Notwithstanding any provision of the Auction Procedures or
the Settlement Procedures to the contrary, in the event BD is an Existing Holder
with respect to shares of a series of AMPS and the Auction procedures provide
that BD shall be deemed to have submitted a Sell Order in an Auction with
respect to such shares if BD fails to submit an Order in that Auction with
respect to such shares, BD shall have no liability to any Person for failing to
sell such shares pursuant to such a deemed Sell Order if (i) such shares were
transferred by the beneficial owner thereof without notification of such
transfer in compliance with the Auction Procedures or (ii) BD has indicated to
the Auction Agent pursuant to Section 2.2(f) of this Agreement that, according
to BD's records, BD is not the Existing Holder of such shares.
Notwithstanding any provision of the Auction Procedures or
the Settlement Procedures to the contrary, in the event an Existing Holder or
Beneficial Owner of shares of a series of AMPS with respect to whom a
Broker-Dealer submitted a Bid to the Auction Agent for such shares that was
accepted in whole or in part, or submitted or is deemed to have submitted a Sell
Order for such shares that was accepted in whole or in part, fails to instruct
its Agent Member to deliver such shares against payment therefore, partial
deliveries of AMPS that have been made in respect of Potential Holders' or
Potential Beneficial Owners' Submitted Bids for shares of such series that have
been accepted in whole or in part shall constitute good delivery to such
Potential Holders and Potential Beneficial Owners.
3. THE AUCTION AGENT
3.1 DUTIES AND RESPONSIBILITIES.
The Auction Agent is acting solely as agent for the Trust
hereunder and owes no duties, fiduciary or otherwise, to any other Person.
The Auction Agent undertakes to perform such duties and
only such duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be
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read into this Agreement, the Auction Agent Agreement, Auction Procedures or the
Settlement Procedures against the Auction Agent.
In the absence of bad faith or negligence on its part, the
Auction Agent shall not be liable for any action taken, suffered, or omitted or
for any error of judgment made by it in the performance of its duties under this
Agreement. The Auction Agent shall not be liable for any error resulting from
the use or reliance on a source of information used in good faith and without
negligence to make any determination, calculation or declaration hereunder. The
Auction Agent shall not be liable for any error of judgment made in good faith
unless the Auction Agent shall have been negligent in ascertaining or failing to
ascertain the pertinent facts. In no event shall the Auction Agent be liable for
special, punitive, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Auction
Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action.
The Auction Agent shall not be: (i) required to, and does
not, make any representations or have any responsibilities as to the validity,
accuracy, value or genuineness of any signatures or endorsements, other than its
own; (ii) obligated to take any legal action hereunder that might, in its
judgment, involve any expense or liability, unless it has been furnished with
indemnity satisfactory to the Auction Agent; and (iii) responsible for or liable
in any respect on account of the identity, Trust or rights of any Person (other
than itself and its agents and attorneys) executing or delivering or purporting
to execute or deliver any document under this Agreement or any Broker-Dealer
Agreement.
(e) The Auction Agent shall not be responsible or liable
for any failure or delay in the performance of its obligations under this
Agreement arising out of or caused, directly or indirectly, by circumstances
beyond its reasonable control; it being understood that the Auction Agent shall
use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.
3.2 RIGHTS OF THE AUCTION AGENT.
The Auction Agent may conclusively rely and shall be fully
protected in acting or refraining from acting upon any communication authorized
by this Agreement and upon any written instruction, notice, request, direction,
consent, report, certificate, share certificate or other instrument, paper or
document believed by it to be genuine. The Auction Agent shall not be liable for
acting upon any communication authorized by this Agreement (including, but not
limited to, any made by telephone, telecopier or other means of electronic
communication acceptable to the parties hereto) which the Auction Agent believes
in good faith to have been given by the Trust or by BD. The Auction Agent may
record telephone communications with BD.
The Auction Agent may consult with counsel of its own
choice, and the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
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The Auction Agent shall not be required to advance, expend
or risk its own funds or otherwise incur or become exposed to financial
liability in the performance of its duties hereunder.
The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys and shall
not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed by it with due care.
The Auction Agent shall not be responsible or liable for
any failure or delay in the performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
reasonable control, it being understood that the Auction Agent shall use
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
3.3 AUCTION AGENT'S DISCLAIMER. The Auction Agent makes no
representation as to, and shall have no liability with respect to, the
correctness of the recitals in, or the validity, adequacy or accuracy of, this
Agreement, the Auction Agent Agreement, the Auction Procedures, the offering
material used in connection with the offer and sale of the AMPS or any other
agreement or instrument executed in connection with the transactions
contemplated herein or in any thereof.
4. MISCELLANEOUS
4.1 TERMINATION. (a) Any party may terminate this Agreement at
any time upon five (5) days written notice to the other parties, which notice
may be given by facsimile as provided in Section 4.4 hereof. This Agreement
shall automatically terminate upon the redemption of all outstanding AMPS or
upon termination of the Auction Agent Agreement.
BD represents that it (or if BD does not act as Agent
Member, one of its affiliates) shall make all dividend payments on the AMPS
available in same-day funds on each Dividend Payment Date to customers that use
BD or affiliate as Agent Member.
4.2 AGENT MEMBER. BD is, and shall remain for the term of this
Agreement, a member of, or participant in, the Securities Depository (or an
affiliate of such a member or participant).
4.3 COMMUNICATIONS. Except for (i) communications authorized to
be by telephone pursuant to this Agreement or the Auction Procedures and (ii)
communications in connection with the Auctions (other than those expressly
required to be in writing), all notices, requests and other communications to
any party hereunder shall be in writing (for the purposes of this Agreement,
telecopy or other means of electronic communication acceptable to the parties
shall be deemed to be in writing) and shall be given to such party, addressed to
it, at its address, telecopy number set forth below and, where appropriate
reference the particular Auction to which such notice relates:
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If to BD, _______________________________
addressed: _______________________________
_______________________________
_______________________________
Attention: ___________________
Telephone No.: ________________
Facsimile No.: ________________
If to the Auction The Bank of New York
Agent, addressed: Corporate Trust Administration
0 Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Dealing and Trading Group - Auction Desk
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the BD, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
addressed: Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Equity Capital Markets
Telephone No.: 212-[ ]
Facsimile No.: 212- [ ]
or such other address or facsimile number as such party may hereafter specify
for such purpose by notice to the other parties. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of BD by a BD Officer, on behalf of the
Auction Agent by an Authorized Officer and on behalf of the Trust by an
Authorized Trust Officer. Telephone communications may be recorded.
4.4 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.
4.5 BENEFITS. Nothing in this Agreement, express or implied,
shall give to any person, other than the Auction Agent, the Trust and BD and
their respective successors and permitted assigns, any benefit of any legal or
equitable right, remedy or claim under this Agreement.
4.6 AMENDMENT; WAIVER.
This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part, except
by a written instrument signed by a duly authorized representative of each of
the parties hereto.
12
Failure of any party to this Agreement to exercise any
right or remedy hereunder in the event of a breach of this Agreement by any
other party shall not constitute a waiver of any such right or remedy with
respect to any subsequent breach.
4.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the respective successors
and permitted assigns of each of the parties hereto. This Agreement may not be
assigned by any party hereto absent the prior written consent of the other
parties.
4.8 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.
4.9 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.
4.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW, OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF NEW YORK).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
THE BANK OF NEW YORK
as Auction Agent
By:
----------------------------------
Xxxxxx Xxxxxxxxx
Vice President
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
as Broker-Dealer
By:
----------------------------------
Name:
Title:
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
THE BANK OF NEW YORK
as Auction Agent
By:
----------------------------------
Xxxxxx Xxxxxxxxx
Vice President
[ ]
as Broker-Dealer
By:
----------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
THE BANK OF NEW YORK
as Auction Agent
By:
----------------------------------
Xxxxxx Xxxxxxxxx
Vice President
[ ]
as Broker-Dealer
By:
----------------------------------
Name:
Title:
Exhibit A
To BROKER-DEALER
AGREEMENT
AUCTION BID FORM
(Submit only one Order on this Order Form)
BLACKROCK NEW YORK MUNICIPAL 2018 TERM TRUST
Auction Market Preferred Shares ("AMPS")
To: The Bank of New York
Corporate Trust Administration Date of Auction ______________
0 Xxxx Xxxxx, 00xx Xxxxx Series of AMPS (indicate by
Xxx Xxxx, Xxx Xxxx 00000 Number Designation)
Attention: Dealing and Trading Group _______
The undersigned Broker-Dealer submits the following Order on behalf of the
Bidder listed below:
Name of Bidder: __________________________________
Bidder placed the Order listed below covering the number of
shares indicated (complete only one blank):
_________________ number of Shares of AMPS now held by
Bidder (an Existing Holder), and the Order is a (check
one):
|_| Hold Order; or
|_| Bid at a rate of ____%; or
|_| Sell Order;
-- or -
_________________ number of Shares of AMPS not now
held by Bidder (a Potential Holder), and the Order
is a Bid at a rate of ______%
Notes:
(1) If submitting more than one Bid for one Bidder, use additional Order
Forms.
(2) If one or more Bids covering in the aggregate more than the outstanding
number of Shares of AMPS held by any Existing Holder are submitted, such
Bids shall be considered valid in the order of priority set forth in the
Auction Procedures.
(3) A Hold or Sell Order may be placed only by an Existing Holder covering a
number of Shares of AMPS not greater than the number of Shares of AMPS
currently held by such Existing Holder.
(4) Potential Holders may make Bids only, each of which must specify a rate.
If more than one Bid is submitted on behalf of any Potential Holder, each
Bid submitted shall be a separate Bid with the rate specified.
(5) Bids may contain no more than three figures to the right of the decimal
point (.001 of 1%).
(6) An Order must be submitted in whole Shares of AMPS with an aggregate
liquidation preference of $25,000.
Name of Broker-Dealer: __________________________
By: __________________________
A-1
Exhibit B
To BROKER-DEALER
AGREEMENT
(To be used only for transfers made other than
pursuant to an Auction)
TRANSFER FORM
BLACKROCK NEW YORK MUNICIPAL 2018 TERM TRUST
Auction Market Preferred Shares ("AMPS")
Series _____ AMPS
(indicate by Number Designation)
We are (check one):
|_| the Existing Holder named below; or
|_| the Broker-Dealer for such Existing Holder; or
|_| the Agent Member for such Existing Holder.
We hereby notify you that such Existing Holder will transfer ___
Shares of AMPS to ____________________.
BLACKROCK NEW YORK
MUNICIPAL 2018 TERM TRUST
______________________________________ _________________________________________
By: _______________________________
Name:
Title:
______________________________________ _________________________________________
(Name of Existing Holder)
______________________________________ _________________________________________
(Name of Broker-Dealer)
______________________________________ _________________________________________
(Name of Agent Member)
______________________________________ _________________________________________
By: _______________________________
Name:
Title:
B-1
Exhibit C
To BROKER-DEALER
AGREEMENT
(To be used only for failures to deliver
AMPS sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
BLACKROCK NEW YORK MUNICIPAL 2018 TERM TRUST
Auction Market Preferred Shares ("AMPS")
Series _____ AMPS
(indicate by Number Designation)
Complete either I. or II.
I. We are a Broker-Dealer for ______________ (the "Purchaser"), which
purchased ____ Shares of AMPS in the Auction held on
__________________ from the seller of such AMPS.
II. We are a Broker-Dealer for _____________ (the "Seller"), which
sold ____ Shares of AMPS in the Auction held on
____________________ to the purchaser of such AMPS.
We hereby notify you that (check one):
__________ the Seller failed to deliver such AMPS to the Purchaser; or
__________ the Purchaser failed to make payment to the Seller upon
delivery of such AMPS.
Name: ________________________________
(Name of Broker-Dealer)
______________________________________ _________________________________________
By: __________________________________
Printed Name:
Title:
C-1
Capitalized terms used in this letter, unless otherwise defined herein,
shall have the meanings set forth in the Offering Documents.
(Name of Purchaser)
By: ________________________________
Name:
Title:
Address: ___________________________
___________________________
___________________________
Dated:
S-1
