EXHIBIT 00 (x)
XXX XXXXXX XXXXXXX XXXXXX XXXXXX XXXXXXXXX TRUST
AND
VAN XXXXXX XXXXXXX INVESTMENT ADVISORY CORP.
AND
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Dated December 21, 1993
This , dated December 21, 1993 (the ""), by and among Van Xxxxxx Xxxxxxx Select Sector Municipal Trust, a
Massachusetts business trust (the "Fund"), Van Xxxxxx Xxxxxxx Investment
Advisory Corp., a Delaware corporation (the "Adviser"), and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, a Delaware corporation ("Xxxxxxx Xxxxx");
WITNESSETH:
WHEREAS, the Fund expects to issue 680 remarketed preferred shares of
beneficial interest ("RP")*, Series A (the "Series A Shares"), and 680
remarketed preferred shares of beneficial interest, Series B (the "Series B
Shares"), with a par value of $.01 and with a liquidation preference of $25,000
per share plus an amount equal to accumulated but unpaid dividends (whether or
not earned or declared (collectively, the "Shares"), pursuant to and with the
powers, preferences and rights assigned to them in the Fund's Declaration of
Trust, as amended to the date hereof (the "Declaration of Trust") and including
the Certificate of Vote establishing and fixing the rights and preferences of
the Shares, a copy of which was filed with the Secretary of State of the
Commonwealth of Massachusetts on December __, 1993 (the "Certificate");
WHEREAS, all Shares will initially be sold to and purchased by Xxxxxxx
Xxxxx, PaineWebber Incorporated and Prudential Securities Incorporated pursuant
to the terms of a purchase agreement (the "Purchase Agreement"), dated December
14, 1993, between the Fund and the Adviser and Xxxxxxx Xxxxx, PaineWebber
Incorporated and Prudential Securities Incorporated.
WHEREAS, the Fund has requested Xxxxxxx Xxxxx to act as the Remarketing
Agent under this Agreement in accordance with the provisions of the Certificate
(and the Board of Trustees of the Fund has adopted a resolution appointing
Xxxxxxx Xxxxx as Remarketing Agent) (i) to set the Applicable Dividend Rate on
the Shares from time to time on behalf of the Fund, and (ii) to remarket Shares
tendered to it in a Remarketing on behalf of the Beneficial Owners of the Shares
from time to time who wish to sell their Shares in a Remarketing (Xxxxxxx Xxxxx
being referred to hereinafter when acting in any of such capacities as the
"Remarketing Agent"); and
WHEREAS, Xxxxxxx Xxxxx is willing to assume such duties on the terms and
conditions expressly set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual.
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* Registered trademark of Xxxxxxx Xxxxx & Co., Inc.
Section 1. Definitions. Capitalized terms used herein that are not
otherwise defined shall have the meanings assigned to them in the Certificate.
Section 2. Appointment and Obligations of the Remarketing Agent.
(a) The Fund hereby appoints Xxxxxxx Xxxxx and Xxxxxxx Xxxxx hereby
accepts such appointment, as the sole Remarketing Agent of the Shares for the
purpose of (i) setting the Applicable Dividend Rate on the Shares from time to
time; (ii) remarketing Shares from time to time on behalf of the Beneficial
Owners thereof; and (iii) performing such other duties as are assigned to the
Remarketing Agent in the Certificate, all pursuant to the procedures set forth
in the Certificate and the prospectus and statement of additional information,
both dated December __, 1993, relating to the offering of the Shares (together,
the "Prospectus"). The Fund shall have the right, on seven Business Days' notice
to the Remarketing Agent, to appoint one or more additional Remarketing Agents
with respect to the Shares under an agreement substantially in the form of this
Agreement. Upon any such appointment, including any appointment of a successor
Remarketing Agent pursuant to Section 4, all references in this Agreement to
"Remarketing Agent" shall be deemed to refer also to each such additional or
successor Remarketing Agent. Any such additional or successor Remarketing Agent
shall accept its appointment by executing an agreement substantially in the form
of this Agreement.
(b) The Remarketing Agent agrees (i) to calculate the Maximum Dividend
Rate applicable to each Dividend Period with respect to the Shares; (ii) to use
its best efforts to set in Remarketings the Applicable Dividend Rate on the
Shares; (iii) to notify the Fund promptly of the Applicable Dividend Rate; (iv)
to use its best efforts to remarket the Shares tendered to the Remarketing Agent
in Remarketings held from time to time as provided in the Certificate; (v) to
assist the Fund in establishing the Specific Redemption Provisions, if any,
relating to the Shares and (vi) to carry out such other duties as are assigned
to the Remarketing Agent in the Certificate, all in accordance with the
provisions of the Certificate.
(c) The Remarketing Agent agrees that if, at any time, either Xxxxx'x or
S&P shall not make available a rating for the Shares required for the
Remarketing Agent to calculate any Maximum Dividend Rate, or if both Xxxxx'x and
S&P shall not make available such a rating, the Fund shall select one or more
Substitute Rating Agencies for such purpose.
(d) It is expressly understood and agreed by the parties hereto that
Shares as to which the Remarketing Agent is listed in the books maintained by
the Paying Agent as the Beneficial Owner may be held by the Remarketing Agent
for its own account or for the account of others.
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(e) It is expressly understood and agreed by the parties hereto that the
obligations of the Remarketing Agent hereunder are conditioned on the issuance
and delivery of the Shares pursuant to the terms and conditions of the Purchase
Agreement. It is further understood and agreed by and between the parties that
the Remarketing Agent shall not be obligated to set the Applicable Dividend Rate
on the Shares or to remarket Shares during a Non-Payment Period, or at any time
that any of the conditions set forth in clauses (a) and (b) of Section 7 hereof
shall not have been fully and completely met to the satisfaction of the
Remarketing Agent or at any time any of the events set forth in clause(c) of
Section 7 hereof shall have occurred.
(f) By 3:30 p.m., New York City time, on each Remarketing Date, the
Remarketing Agent will advise the Paying Agent of (i) the Applicable Dividend
Rate determined in the related Remarketing; (ii) the identities of (and the
number of Shares held by) the Beneficial Owners who purchased such Shares as a
result of the Remarketing; (iii) the identities of (and number of Shares sold
by) persons (i.e., former Beneficial Owners) who sold Shares in the Remarketing;
and (iv) the Specific Redemption Provisions, if any, relating to the Shares. By
3:30 p.m., New York City time, on each Remarketing Date, the Remarketing Agent
shall also advise the Fund of the information set forth in clause (i) of this
Section 2(f).
(g) As soon as practicable after the Date of Original Issue for any
Shares, but not later than the fifth Business Day preceding the date of the
first Remarketing for such Shares, the Remarketing Agent will provide the Fund
and the Paying Agent with: a list of the persons (other than the Remarketing
Agent) in whose names Shares are to be registered in the books to be maintained
by the Paying Agent and the respective numbers of Shares acquired by such
persons from the Remarketing Agent and (ii) the number of Shares it is holding
for its own account and (on an aggregate basis) as nominee for the account of
others as of the date of such notice.
(h) The Remarketing Agent shall promptly notify the Paying Agent by a
notice substantially in the form of Exhibit A hereto of any transfers of Shares
outside of a Remarketing of which it is aware. Notwithstanding the foregoing,
the Remarketing Agent shall not be required to notify the Paying Agent of any
transfer outside of a Remarketing unless such transfer would result in a new
Beneficial Owner. It is understood and agreed by the parties hereto that the
Remarketing Agent shall be under no obligation to disclose to the Fund or the
Paying Agent or any other person the identity of any person for whose account
Shares are held by the Remarketing Agent as Beneficial Owner unless such
disclosure is required by law or in connection with any pending or threatened
legal proceedings involving the Fund or the Paying Agent.
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(i) The Remarketing Agent agrees that, whenever it receives the notice
from the Fund contemplated by the first sentence of Section [6] of Part II of
the Certificate, it will in turn notify the Holders of shares and prospective
purchasers believed by it to be interested in purchasing Shares in such
Remarketing.
(j) Xxxxxxx Xxxxx represents and warrants to the Fund that Xxxxxxx Xxxxx &
Co., Inc. is the exclusive owner of the registered trademark "RP" and that
Xxxxxxx Xxxxx is authorized by Xxxxxxx Xxxxx & Co., Inc. to consent to the use
by the Fund of such trademark, and, subject to the provisions of Section 9(c)
hereof, hereby consents to the use by the Fund of such trademark in connection
with the Shares.
(k) The Remarketing Agent may, in its sole discretion, modify the
settlement procedures set forth in the Certificate so long as any such
modification does not adversely affect the Beneficial Owners or the Holders of
the Shares of the Fund. It is understood that a failure to settle a purchase or
sale of tendered Shares in any Remarketing will not change the Applicable
Dividend Rate previously set in such Remarketing, and will not result in any
responsibility of, or liability to, the Fund for settlement of such purchase or
sale.
(l) The Remarketing Agent may, in its sole discretion, modify the
procedures concerning notification of redemption set forth in the Certificate,
provided that, any such modification does not adversely affect any Holder or any
Beneficial Owner of the Shares or materially alter the obligations of the Paying
Agent, does not adversely affect the rating of the Shares and does not cause the
Fund to violate any law, rule or regulation, including the 1940 Act and the laws
of the Commonwealth of Massachusetts.
Section 3. Fees and Expenses. For the performance of its services as
Remarketing Agent hereunder, the Fund shall pay to the Remarketing Agent on the
first Settlement Date and on the same day in every fourth week thereafter (or
the next Business Day if such day is not a Business Day) with respect to each
Share outstanding on such day a fee which shall be calculated by multiplying (i)
the product of 0.25% times $25,000, by (ii) the actual number of days from and
including such day to but excluding the next day for the payment of such fee (or
prior redemption or liquidation day for such share as the case may be) divided
by 360, and rounding the product of (i) and (ii) upward to the nearest dollar;
provided that should the Dividend Period with respect to any Share be a Special
Dividend Period of 365 days or more, then during such Dividend Period the fee
for such Share will not be calculated in the aforesaid manner, and, with respect
to such Share, the Fund will instead pay to the Remarketing Agent a fee, to be
determined by mutual consent of the Fund and the Remarketing Agent, based on the
selling concession that would be applicable to an underwriting of a fixed or
variable rate preferred stock issue with a similar dividend period at the
commencement of such Dividend Period. In
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addition to its obligations under Section 8 hereof, the Fund shall, from time to
time upon the request of the Remarketing Agent, pay the reasonable fees and
expenses of its counsel incurred by the Remarketing Agent in connection with the
performance of its duties hereunder, except any such fees and expenses arising
out of the gross negligence or willful misconduct of the Remarketing Agent. The
obligation of the Fund to make the payments required by this Section shall
survive the termination of this Agreement and remain in full force and effect
until all such payments shall have been made in full.
Section 4. Resignation and Removal of the Remarketing Agent.
(a) The Remarketing Agent may resign and be discharged from its duties and
obligations hereunder with respect to the Shares by giving 60 days' prior
written notice to the Fund, the Securities Depository and the Paying Agent;
provided, however, that no such prior resignation nor any such removal shall be
effective until the Fund shall have appointed a nationally recognized broker
dealer as successor Remarketing Agent pursuant to the Certificate and such
successor Remarketing Agent shall have entered into a with
the Fund in which it shall have agreed to conduct Remarketings in accordance
with the terms and conditions of the Certificate. In such case, the Fund will
use its best efforts to appoint a successor Remarketing Agent and enter into
such with such person as soon as reasonably practicable.
(b) In addition to the provisions of Section 9(b) hereof, the Remarketing
Agent may also terminate the with respect to the Shares or
may resign with respect to the Shares by giving notice in writing to the Fund,
the Securities Depository and the Paying Agent if any of the following events
has occurred and has not been cured prior to the proposed date of such
termination or resignation (in each case for a period of 30 days after the
Remarketing Agent has given notice thereof to the Fund specifying the condition
or event): (i) the rating of the Shares shall have been downgraded or withdrawn
by a national rating service, the effect of which, in the opinion of the
Remarketing Agent, is to affect materially and adversely the market price of the
Shares or the ability of the Remarketing Agent to remarket the Shares; (ii) all
of the Shares shall have been called for redemption; or (iii) without the prior
written consent of the Remarketing Agent, the Declaration of Trust of the Fund
(the "Declaration of Trust"), the Certificate, the By-laws of the Fund (the
"By-laws") or the Paying Agent Agreement dated as of the date hereof between the
Fund and Bankers Trust Company (the "Paying Agent Agreement") shall have been
amended in any manner that, in the opinion of the Remarketing Agent, materially
and adversely changes the nature of the Shares or the Remarketing procedures.
(c) The Fund may remove a Remarketing Agent with respect to the Shares (i)
for any reason by giving at least 60 days' prior written
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notice to the Remarketing Agent, the Securities Depository and the Paying Agent;
(ii) for failure to perform its obligations under the terms of this Agreement by
giving at least 30 days' prior written notice to the Remarketing Agent, the
Securities Depository and the Paying Agent; provided, however, that no such
removal pursuant to clauses (i) and (ii) shall become effective until the Fund
shall have appointed at least one nationally recognized broker-dealer as
successor Remarketing Agent and such successor Remarketing Agent shall have
entered into a with the Fund in which it shall have agreed
to conduct Remarketings in accordance with the terms and conditions of the
Certificate. In such case, the Fund will use its best efforts to appoint a
successor Remarketing Agent and enter into such a with
such person as soon as reasonably practicable.
(d) Subject to Section 9(c) hereof, Xxxxxxx Xxxxx agrees that in the event
it shall resign or be removed pursuant to clause (a), (b) or (c) above, it
hereby consents to the use by the Fund of the registered trademark "RP" in
connection with the Shares. Xxxxxxx Xxxxx shall acknowledge and deliver to the
Fund, without consideration, any assignments, consents or other documents and
take such other action as the Fund may reasonably request to permit the Fund's
use of such trademark.
Section 5. Dealing in the Shares; Redemption of Remarketing Agent's
Shares. Xxxxxxx Xxxxx, when acting as Remarketing Agent or in its individual or
any other capacity, may to the extent permitted by law, buy, sell, hold and deal
in any of the Shares; provided, however, that (i) Xxxxxxx Xxxxx may hold Shares
for its own account upon completion of a Remarketing only if the Applicable
Dividend Rate established with respect to the Shares in the Remarketing is no
higher than the Applicable Dividend Rate that would have been set if Xxxxxxx
Xxxxx did not hold or had not purchased such Shares and (ii) Xxxxxxx Xxxxx may
purchase Shares for its own account or the accounts of others in a Remarketing
only if it purchases all tendered Shares not sold in the Remarketing to other
purchasers. Except as provided in clause (ii) of the preceding sentence, Xxxxxxx
Xxxxx is not obligated to purchase any Shares that would otherwise remain unsold
in a Remarketing. If Xxxxxxx Xxxxx owns any Shares immediately prior to a
Remarketing and if all other Shares tendered for sale have been sold in such
Remarketing, then Xxxxxxx Xxxxx will sell such number of its Shares in such
Remarketing as there are outstanding orders to purchase that have not been
filled by Shares tendered for sale on behalf of accounts other xxxx Xxxxxxx
Xxxxx. Xxxxxxx Xxxxx may exercise any vote or join in any action which any
Holder of Shares may be entitled to exercise or take pursuant to the Certificate
with like effect as if it did not act in any capacity hereunder. Xxxxxxx Xxxxx,
in its individual capacity, either as principal or agent, may also engage in or
have an interest in any financial or other transaction with the Fund as freely
as if it did not act in any capacity hereunder.
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Section 6. Information.
(a) The Fund agrees to furnish to the Remarketing Agent: (i) copies of the
Declaration of Trust, the Certificate and the By-laws and any amendment thereto
and each report or other document mailed or made available to holders of Shares
(including annual reports to shareholders) or filed by the Fund with the
Commission (including any documents incorporated therein by reference); (ii)
notice of the creation of any subsidiary by the Fund; (iii) notice of the
purchase of Shares, either in a Remarketing or otherwise, by a subsidiary or
affiliate of the Fund as soon as the Fund shall become aware of such purchase;
(iv) notice of the occurrence of any of the events set forth in clause (c)(i),
(c)(ii) or (c)(iii) of Section 7 hereof; and (v) in connection with the
Remarketing of the Shares, such other remarketing information as the Remarketing
Agents may reasonably request from time to time, including but not limited to
the financial condition of the Fund. The Fund agrees to provide the Remarketing
Agent with as many copies of the foregoing materials and information as the
Remarketing Agent may reasonably request for use in connection with the
Remarketing of the Shares and consents to the use thereof for such purpose. The
Remarketing Agent agrees to enter into a Confidentiality Agreement with the Fund
if deemed necessary or desirable by the Fund in connection with the Fund's
obligation to provide certain information to the Remarketing Agent for its use
as Remarketing Agent.
(b) If at any time during the term of this Agreement any event or
condition known to the Fund relating to or affecting the Fund or the Shares
shall occur which might affect the accuracy or completeness of any statement of
a material fact contained in any of the reports, documents, materials and
information referred to in clause (a) above or any document incorporated therein
by reference (collectively, the "Remarketing Materials") or any other materials
or information made publicly available by the Fund, the Fund shall promptly
notify the Remarketing Agent in writing of the circumstances and details of such
event or condition.
(c) None of the information contained in any of the Remarketing Materials
shall contain an untrue or misleading statement of a fact or omit to state a
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading with respect to which there shall be a substantial possibility that
such fact, statement or omission would be material to an existing holder or
prospective purchaser of Shares.
Section 7. Conditions to Obligations of the Remarketing Agent. The
obligations of the Remarketing Agent with respect to the Shares under this
Agreement have been undertaken in reliance on, and shall be subject to: (a) the
due performance in all material respects by the Fund of its obligations and
agreements as set forth in this Agreement
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(including section 6(c) hereof) and the Purchase Agreement; (b) the accuracy in
all material respects as of the dates specified therein of the representations
and warranties contained in the Purchase Agreement; and (c) the non-occurrence
of any of the following events: (i) the rating of the Shares shall have been
downgraded or withdrawn by a national rating service after the date hereof, the
effect of which, in the opinion of the Remarketing Agent, is to affect
materially and adversely the market price of the Shares or the Remarketing
Agents' ability to remarket the Shares; (ii) all of the Shares shall have been
called for redemption; or (iii) without the prior written consent of the
Remarketing Agent, the Declaration of Trust, the Certificate, the By-Laws or the
Paying Agent Agreement dated as of the date hereof between the Fund and Bankers
Trust Company (the "Paying Agent Agreement") shall have been amended in any
manner that in the opinion of the Remarketing Agent materially changes the
nature of the Shares or the remarketing procedures (each of the events set forth
in this subpart (iii) being referred to as a "Material Change"). In the event of
the failure of any such conditions with respect to the Shares, the Remarketing
Agent may terminate its obligations under this Agreement as provided in Section
9(b).
Section 8. Indemnification.
(a) The Fund and the Adviser, jointly and severally, agree to indemnify
and hold harmless the Remarketing Agent and its officers, directors and
employees (collectively, the "Indemnified Persons" and individually, an
"Indemnified Person") from and against any losses, claims, damages or
liabilities to which any Indemnified Person may become subject insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in any of the Remarketing Materials or arise out of, or
are based upon, the omission or alleged omission to state a material fact
required to be stated in the Remarketing Materials or any revision thereof or
supplement thereto or necessary to make the statements therein, in the light of
the circumstances in which they were made, not misleading, or arise out of, or
are based upon, any violation by the Fund or the Adviser of, or any failure by
the Fund or the Adviser to perform any of its obligations under, this Agreement.
The Fund or the Adviser agrees to promptly reimburse each Indemnified Person for
any legal or other expenses reasonably incurred by such Indemnified Person in
investigating, defending or preparing to defend any such action or claim;
provided, however, that neither the Fund nor the Adviser shall be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of the use by a Remarketing Agent of any information that is not contained
in the Remarketing Materials and provided further that the Adviser will be
liable to any Indemnified Person pursuant to its indemnity set forth in this
subsection (a) only to the extent that the Fund fails to indemnify and hold
harmless any Indemnified Person pursuant to its indemnities set forth in this
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subsection (a). The indemnity agreement in this paragraph shall be in addition
to any liability or obligation which the Fund or the Adviser may otherwise have
to any Indemnified Person and shall extend upon the same terms and conditions to
each person, if any, who controls any Indemnified Person within the meaning of
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) Each Indemnified Person shall give notice as promptly as reasonably
practicable to the Fund and the Adviser of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify the
Fund and the Adviser shall not relieve either the Fund or the Adviser from any
liability which it may have otherwise than on account of this indemnity
agreement. No settlement or compromise of any such action shall be made without
the consent of the Fund or the Adviser, which consent shall not be unreasonably
withheld. The Fund may participate at its own expense in the defense of such
action. In no event shall the Fund or the Adviser be liable for fees and
expenses of more than one counsel separate from its own counsel for all
Indemnified Persons in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(c) Xxxxxxx Xxxxx agrees, unless Xxxxxxx Xxxxx has requested pursuant to
Section 9(c) hereof that the Fund cease using such trademark or Xxxxxxx Xxxxx'x
consent to use such trademark shall have been revoked pursuant to Section 9(c)
hereof, (i) to indemnify and hold harmless the Fund and the Adviser and their
respective officers, trustees and directors from and against any losses, claims,
damages or liabilities to which they or any of them may become subject insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon their failure to have the requisite legal
authority to use the registered trademark of "RP" in connection with the Shares,
and (ii) to reimburse each of the persons specified above for any legal or other
expenses reasonably incurred by such person in investigating, defending or
preparing to defend any such action or claim. Notice of any action in respect of
which indemnity may be sought pursuant to this Section shall be given to Xxxxxxx
Xxxxx as promptly as reasonably practicable, but failure to so notify Xxxxxxx
Xxxxx shall not relieve Xxxxxxx Xxxxx from liability which it may have otherwise
than on account of this indemnity agreement. No settlement or compromise of any
such action shall be made without the consent of Xxxxxxx Xxxxx, which consent
shall not be unreasonably withheld. Xxxxxxx Xxxxx may participate at its own
expense in the defense of any such action, and in no event shall Xxxxxxx Xxxxx
be liable for the fees and expenses of more than one counsel separate from its
own counsel for all parties indemnified in this Section in connection with any
one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
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(d) The indemnity agreement contained in clauses (a) and (b) of this
Section shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Remarketing Agent, and shall survive
the termination or cancellation of this Agreement and the remarketing of any
Shares hereunder.
Section 9. Termination of ; Termination of Use of
Trademark.
(a) This Agreement shall terminate as to the Remarketing Agent and its
obligations hereunder with respect to the Shares on the effective date of the
resignation or removal of the Remarketing Agent pursuant to Section 4 hereof.
The obligations of the parties under this Agreement with respect to the Shares
(other than those provided in Sections 2(b)(i), 2(h), 2(i), 2(j), 4(d), 8 and
10) will be suspended during a Non-Payment Period.
(b) In addition, the Remarketing Agent may terminate this Agreement and
all of its obligations hereunder with respect to the Shares, by notifying the
Fund, the Securities Depository, and the Paying Agent of its election to do so,
if any of the conditions referred to or set forth in Section 7 hereof have not
been met or satisfied in full and such failure shall have continued for a period
of 30 days after the Remarketing Agent has given notice thereof to the Fund
specifying the condition which has not been met and requiring it to be met;
provided, however, that termination of this Agreement by the Remarketing Agent
after giving the required notices shall be immediate in the event of the
occurrence and continuation of any event set forth in Section 7(c) hereof, or in
the event the Remarketing Agent determines, in its sole discretion, that it
shall not have received all of the information, whether or not specifically
referenced herein, necessary to fulfill its obligations under this Agreement.
(c) Notwithstanding any other provision of this Agreement, in the event of
a Material Change, the Fund shall promptly, upon the request of Xxxxxxx Xxxxx,
cease using the term "RP" and shall take any and all actions that Xxxxxxx Xxxxx
shall reasonably request to discontinue the use of said term. Upon the
occurrence of a Material Change, any consent granted by Xxxxxxx Xxxxx pursuant
to Section 4(d) hereof shall, at the election of Xxxxxxx Xxxxx, be revoked and
of no further effect.
Section 10. Remarketing Agent's Performance; Duty of Care. The duties and
obligations of the Remarketing Agent shall be determined solely by the express
provisions of this Remarketing Agreement and the Certificate. No implied
covenants or obligations shall be read into this Remarketing Agreement and the
Certificate. In the absence of bad faith on the part of the Remarketing Agent,
the Remarketing Agent may conclusively rely upon any document furnished to it,
which purports to conform to the requirements of this Remarketing Agreement and
the Certificate as to the truth of the statements expressed in any of such
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documents. The Remarketing Agent shall be protected in acting upon any document
or communication reasonably believed by it to have been signed, presented or
made by the proper party or parties. Xxxxxxx Xxxxx shall incur no liability to
the Fund or to any Beneficial Owner or Holder of Shares or any other person in
its individual capacity or as Remarketing Agent for any action or failure to act
in connection with a Remarketing or otherwise, except as a result of its gross
negligence or willful misconduct on its part.
Section 11. Books and Records. The Remarketing Agent shall keep such books
and records with respect to the performance of its duties hereunder as shall be
consistent with prudent industry practice and shall make such books and records
available for inspection by the Fund on reasonable notice during normal business
hours.
Section 12. Governing Law and Time. This Remarketing Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed in said State. Except where
otherwise provided, specified times of day refer to New York City time.
Section 13. Term of Agreement. Unless otherwise terminated in accordance
with the provisions hereof, this Agreement shall remain in full force and effect
from the date hereof with respect to the Shares until the first day thereafter
on which no such Shares are outstanding. Regardless of any termination of this
Agreement pursuant to any of the provisions hereof, the obligations of the Fund
pursuant to Section 3 hereof and the Fund and the Adviser pursuant to Section 8
hereof and of the Remarketing Agent pursuant to Sections 2(j), 4(d) and 8 hereof
shall remain operative and in full force and effect until fully satisfied.
Section 14. Successors and Assigns. The rights and obligations of the Fund
and the Adviser hereunder may not be assigned or delegated to any other person
without the prior written consent of the Remarketing Agent. The rights and
obligations of the Remarketing Agent hereunder may not be assigned or delegated
to any other person without the prior written consent of the Fund. This
Agreement shall inure to the benefit of and be binding upon the Fund, the
Adviser and the Remarketing Agent and their respective successors and assigns,
and will not confer any benefit upon any other person, partnership, association
or corporation other than persons, if any, controlling Xxxxxxx Xxxxx within the
meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20
of the Exchange Act, or any Indemnified Person to the extent provided in Section
8 hereof. The terms "successors" and "assigns" shall not include any purchaser
of Shares merely because of such purchase.
Section 15. Headings. The section headings herein are for convenience of
reference only, and it is agreed that such section
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headings are not a part of this Agreement and will not be used in the
interpretation of any provisions of this Agreement.
Section 16. Severability. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdiction or jurisdictions,
because it conflicts with any provision of any constitution, statute, rule of
public policy, or for any other reason, such circumstances shall not have the
effect of rendering the provision in question invalid, inoperative or
unenforceable in any other case, circumstance or jurisdiction, or of rendering
any other provision or provisions of this Agreement invalid, inoperative or
unenforceable to any extent whatsoever.
Section 17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 18. Remarketing Agent Not Acting as Underwriter. It is understood
and agreed by the parties hereto that the only obligations of the Remarketing
Agent hereunder are as set forth in Sections 2, 8 and 11 hereof. When engaged in
remarketing any tendered Shares, the Remarketing Agent shall act only as agent
for and on behalf of each owner of the Shares so tendered. The Remarketing Agent
shall not act as underwriter for the tendered Shares and shall in no way be
obligated to advance its own funds to purchase any tendered Shares (except in
their respective individual capacity as purchaser of those Shares one or more of
them may elect, in accordance with Section 5 hereof, to purchase, in its sole
discretion) or to otherwise expend or risk its own funds or incur or become
exposed to financial liability in the performance of its duties hereunder.
Section 19. Amendment. This Agreement may be amended by any instrument in
writing signed by all of the parties hereto so long as this Agreement as amended
is not inconsistent with the Certificate in effect as of the date of any such
amendment.
Section 20. Liability of Shareholders, Trustees and Officers. A copy of
the Declaration of Trust of the Fund is on file with the Secretary of State of
The Commonwealth of Massachusetts and notice is hereby given that this Agreement
has been executed on behalf of the Fund by an officer of the Fund as an officer
and not individually and the obligations of the Fund arising out of this
Agreement are not binding upon any of the trustees, officers or shareholders of
the Fund individually but are binding only upon the assets and property of the
Fund.
Section 21. Benefits. Nothing herein, express or implied, shall give to
any person, other than the Fund, the Remarketing Agent and their respective
successors and assigns, any benefit of any legal or
12
equitable right, remedy or claim hereunder. In particular, and without limiting
the generality of the foregoing, no Holder or Beneficial Owner of any Shares
shall have or be deemed to have any right in respect of, or shall in any event
be entitled to enforce or to seek recourse against any person in respect of, any
provision of this Agreement, and any and all rights of Holders of Shares or
obligations of the Fund in respect thereof arise only under and are governed
solely by the Declaration of Trust, Certificate and By-laws as they are in
effect from time to time.
Section 22. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing and shall be deemed to have been validly given or made
when delivered or mailed, by registered or certified mail, return receipt
requested and postage prepaid, or by prepaid courier service, addressed as
follows: if to the Fund or the Adviser, to either of them at 0000 Xxxxxxxxxxx
Xxxx, Xxxxx, Xxxxxxxx 00000, Attention: Xx. Xxxxxx X. XxXxxxxx, President, and
if to the Remarketing Agent, to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, World Financial Center - Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Remarketed Preferred Transactions Desk, 7th Floor.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and on its behalf by one of its duly authorized
officers as of the date first above written.
VAN XXXXXX XXXXXXX SELECT SECTOR
MUNICIPAL TRUST
By:
-------------------------------------------
Name:
Title:
VAN XXXXXX XXXXXXX INVESTMENT ADVISORY CORP.
By:
-------------------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ [illegible]
-------------------------------------------
Name:
Title:
13
equitable right, remedy or claim hereunder. In particular, and without limiting
the generality of the foregoing, no Holder or Beneficial Owner of any Shares
shall have or be deemed to have any right in respect of, or shall in any event
be entitled to enforce or to seek recourse against any person in respect of, any
provision of this Agreement, and any and all rights of Holders of Shares or
obligations of the Fund in respect thereof arise only under and are governed
solely by the Declaration of Trust, Certificate and By-laws as they are in
effect from time to time.
Section 23. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing and shall be deemed to have been validly given or made
when delivered or mailed, by registered or certified mail, return receipt
requested and postage prepaid, or by prepaid courier service, addressed as
follows: if to the Fund or the Adviser, to either of them at 0000 Xxxxxxxxxxx
Xxxx, Xxxxx, Xxxxxxxx 00000, Attention: Xx. Xxxxxx X. XxXxxxxx, President, and
if to the Remarketing Agent, to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, World Financial Center - Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Remarketed Preferred Transactions Desk, 7th Floor.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and on its behalf by one of its duly authorized
officers as of the date first above written.
VAN XXXXXX XXXXXXX SELECT SECTOR
MUNICIPAL TRUST
By: /s/ Xxxxxx X. XxXxxxxxx
-------------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: President
VAN XXXXXX XXXXXXX INVESTMENT ADVISORY CORP.
By: /s/ Xxxxxx X. XxXxxxxxx
-------------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: President
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-------------------------------------------
Name:
Title:
14
EXHIBIT A
[Remarketing Agent to
Paying Agent - to be used only for transfers
made other than pursuant to a Remarketing]
VAN XXXXXX XXXXXXX SELECT SECTOR MUNICIPAL TRUST
REMARKETED PREFERRED SHARES OF BENEFICIAL INTEREST ("RP"(R)),
SERIES A ("SERIES A SHARES")
AND
REMARKETED PREFERRED SHARES OF BENEFICIAL INTEREST,
SERIES B ("SERIES B SHARES")
TRANSFER FORM
The undersigned hereby notifies you that:
__________________________________________
(Print name of existing beneficial owner)
has sold ________ shares of Series A Shares and___________ shares of
Series B Shares to
__________________________________________
(Print name of new beneficial owner)
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By: ______________________________________
Name:
Title:
(R) Registered trademark of Xxxxxxx Xxxxx & Co., Inc.
15
