Exhibit k.4
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MANAGED MUNICIPALS PORTFOLIO INC.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
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BROKER-DEALER AGREEMENT
dated as of May __, 2002
Relating to
Municipal Auction Rate Cumulative Preferred Stock,
Series M, Series T, Series W, Series Th and Series F
of
Managed Municipals Portfolio Inc.
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XXXXXXX XXXXX XXXXXX INC.
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BROKER-DEALER AGREEMENT dated as May __, 2002 among MANAGED MUNICIPALS
PORTFOLIO INC., a Maryland corporation (the "Fund"), DEUTSCHE BANK TRUST COMPANY
AMERICAS, a New York corporation (the "Auction Agent") (not in its individual
capacity but solely as agent for the Fund pursuant to authority granted to it in
the Auction Agency Agreement (as defined below)), and XXXXXXX XXXXX BARNEY INC.,
a New York corporation (together with its successors and assigns, "SSB").
WHEREAS, the Fund proposes to issue five series of shares of Municipal
Auction Rate Cumulative Preferred Stock, designated Series M, Series T, Series
W, Series Th and Series F ("Preferred Shares") pursuant to the Fund's Articles
of Incorporation and Articles Supplementary (as defined below);
WHEREAS, the Articles Supplementary will provide that, for each Subsequent
Rate Period of Preferred Shares then outstanding, the Applicable Rate on shares
of each series of Preferred Shares for such Subsequent Rate Period shall, under
certain conditions, be equal to the rate per annum that results from an Auction
for Outstanding shares of each series on the respective date therefor next
preceding such Subsequent Rate Period. The Board of Directors has adopted a
resolution appointing Deutsche Bank Trust Company Americas (formerly known as
Bankers Trust Company) as Auction Agent for purposes of the Auction Procedures
for Preferred Shares; and
WHEREAS, the Auction Procedures require the participation of one or more
Broker-Dealers for Preferred Shares.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Fund, the Auction Agent and SSB 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 Parts I and II of the Articles Supplementary.
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:
(a) "Articles Supplementary" shall mean the Articles Supplementary by
which the Fund's Board of Directors will reclassify 10,000 shares of authorized
and unissued common stock, $.001 par value, as preferred stock, $.001 par value,
and authorize the issuance of such preferred stock designated as Municipal
Auction Rate Cumulative Preferred Stock, Series M, Series T, Series W, Series Th
and Series F, as such Articles Supplementary, attached hereto as Exhibit A, were
filed by the Fund on May __, 2002 with the State Department of Assessments and
Taxation of the State of Maryland, and as may be amended from time to time.
(b) "Auction" shall have the meaning specified in Section 2.1 hereof.
(c) "Auction Agency Agreement" shall mean the Auction Agency
Agreement, dated as of May , 2002, between the Fund and the Auction Agent
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relating to the Preferred Shares.
(d) "Auction Procedures" shall mean the auction procedures
constituting Part II of the Articles Supplementary as of the filing thereof.
(e) "Authorized Officer" shall mean each Managing Director, Vice
President, Assistant Vice President, and Associate 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 SSB.
(f) "Broker-Dealer" shall mean SSB and any other broker-dealer who
signs a substantially similar agreement with the Auction Agent.
(g) "Broker-Dealer Agreement" shall mean this Agreement and any
substantially similar agreement between the Auction Agent and a Broker-Dealer.
(h) "Preferred Shares" shall mean the preferred stock, par value $.001
per share, of the Fund designated as its "Municipal Auction Rate Cumulative
Preferred Stock, Series M, Series T, Series W, Series Th and Series F."
(i) "SSB Officer" shall mean each officer or employee of SSB
designated as a "SSB Officer" for purposes of this Agreement in a communication
to the Auction Agent.
(j) "Settlement Procedures" shall mean the Settlement Procedures
attached hereto as Exhibit B.
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1.3. Rules of Construction.
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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.
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2. The Auction.
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2.1. Purpose; Incorporation by Reference of Auction Procedures and
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Settlement Procedures.
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(a) The provisions of the Auction Procedures will be followed by the
Auction Agent for the purpose of determining the Applicable Rate for any
Subsequent Rate Period of each series of Preferred Shares for which the
Applicable Rate is to be determined by an Auction. 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 set forth fully herein.
(c) SSB agrees to act as, and assumes the obligations of, and
limitations and restrictions placed upon, a Broker-Dealer under this Agreement
for Preferred Shares. SSB understands that other Persons meeting the
requirements specified in the definition of "Broker-Dealer" contained in the
Auction Procedures may execute Broker-Dealer Agreements and participate as
Broker-Dealers in Auctions.
2.2. Preparation for Each Auction.
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(a) Not later than 9:30 A.M. on each Auction Date for Preferred
Shares, the Auction Agent shall advise the Broker-Dealers for Preferred Shares
by telephone of the Maximum Rate therefor and the Reference Rate and Treasury
Rate(s), as the case may be, used in determining such Maximum 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 (vi)
of paragraph (a) of the Settlement Procedures, or after the notice referred to
in Section 2.5(a) hereof, if applicable, the Auction Agent, by such means as the
Auction Agent deems practicable, shall give notice of such change to SSB not
later than the earlier of (i) 9:15 A.M. on the new Auction Date and (ii) 9:15
A.M. on the old Auction Date. Thereafter, SSB shall promptly notify customers of
SSB that SSB believes are Existing Holders of Preferred Shares of such change in
the Auction Date.
(c) The Auction Agent from time to time may request the Broker-Dealers
to provide the Auction Agent with a list of their respective customers that such
Broker-Dealers believe are Existing Holders of shares of Preferred Shares. SSB
shall comply with any such request, and the Auction Agent shall keep
confidential any such information so provided by SSB and shall not disclose any
information so provided by SSB to any Person other than the Fund and SSB. The
Auction Agent shall transmit any list of customers SSB believes are Existing
Holders of Preferred Shares and information related thereto only to its
officers, employees, agents or representatives who need to know such information
for the purposes of acting in accordance with this Agreement and shall use its
reasonable efforts to 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
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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) SSB agrees to maintain a list of Potential Holders and to use its
best efforts, subject to existing laws and regulations, to contact the Potential
Holders on such list whom SSB believes may be interested in participating in
such Auction on each Auction Date for the purposes set forth in the Auction
Procedures. Nothing herein shall require SSB to submit an Order for any customer
in any Auction.
(e) The Auction Agent's registry of Existing Holders of shares of a
series of Preferred Shares shall be conclusive and binding on SSB. SSB may
inquire of the Auction Agent between 3:00 P.M. on the Business Day preceding an
Auction for shares of Preferred Shares and 9:30 A.M. on the Auction Date for
such Auction to ascertain the number of shares in respect of which the Auction
Agent has determined SSB to be an Existing Holder. If SSB believes it is the
Existing Holder of fewer shares than specified by the Auction Agent in response
to SSB's inquiry, SSB may so inform the Auction Agent of that belief. SSB shall
not, in its capacity as Existing Holder of shares, submit Orders in such Auction
in respect of shares covering in the aggregate more than the number of shares
specified by the Auction Agent in response to SSB's inquiry.
2.3. Auction Schedule; Method of Submission of Orders; Solicitation of
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Potential Holders.
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(a) The Auction Agent shall conduct Auctions in accordance with the
schedule set forth below. Such schedule may be changed by the Auction Agent with
the consent of the Fund, which consent shall not be unreasonably withheld or
delayed. The Auction Agent shall give written notice of any such change to each
Broker-Dealer. Such notice shall be given prior to the close of business on the
Business Day next preceding the first Auction Date on which such change shall be
effective.
Time Event
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By 9:30 A.M. Auction Agent advises the Fund and the
Broker-Dealers of the applicable Maximum
Rate and the Reference Rate(s) and
Treasury Rate(s), as the case may be,
used in determining such Maximum Rate 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-Dealers as
provided in Section 3(a) of the Auction
Procedures. Submission Deadline is 1:30
P.M.
Not earlier than Auction Agent assembles valid Orders and
1:30 P.M. makes determinations pursuant to
Section 3(a) of the Auction Procedures.
By approximately Auction Agent advises Fund of results of
3:00 P.M. the Auction
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3:00 P.M. Procedures. Submitted Bids and Submitted
Sell Orders are accepted and rejected
and shares of Preferred Shares 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.
(b) SSB agrees to maintain a list of Potential Holders and to contact
the Potential Holders on such list on each Auction Date for the purposes set
forth in paragraph 1(a) of the Auction Procedures. The Auction Agent shall have
no duty or liability with respect to the enforcement of this subsection 2.3(b).
(c) SSB shall submit orders to the Auction Agent in writing
substantially in the form attached hereto as Exhibit C. SSB shall submit a
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separate Order to the Auction Agent for each Potential Holder or Existing Holder
on whose behalf SSB is submitting an order and shall not net or aggregate the
orders of different Potential Holders or Existing Holders on whose behalf SSB is
submitting Orders.
(d) SSB shall deliver to the Auction Agent (i) a written notice,
substantially in the form attached hereto as Exhibit D, of transfers of shares
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of Preferred Shares made through SSB 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 shares of Preferred
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Shares to be transferred to or by any Person that purchased or sold shares of
Preferred Shares through SSB pursuant to an Auction. The Auction Agent is not
required to accept any such notice for an Auction unless it is received by the
Auction Agent by 3:00 P.M. on the Business Day preceding such Auction.
(e) SSB and other Broker-Dealers may submit orders in Auctions for
their own accounts (including Orders for their own accounts where the order is
placed beneficially for a customer) unless the Fund shall have notified SSB and
all other Broker-Dealers that they may no longer do so, in which case
Broker-Dealers may continue to submit Hold Orders and Sell Orders for their own
accounts.
(f) SSB agrees to handle its own and its customers' orders in
accordance with its duties under applicable securities laws and rules.
2.4. Notices.
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(a) On each Auction Date, the Auction Agent shall notify SSB by
telephone or other electronic means 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
confirm to SSB in writing the disposition of all Orders submitted by SSB in such
Auction.
(b) SSB shall notify each Existing Holder or Potential Holder on whose
behalf SSB has submitted an Order as set forth in paragraph (b) of the
Settlement Procedures and take such other action as is required of SSB pursuant
to the Settlement Procedures.
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2.5. Designation of Special Rate Period.
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(a) If the Fund delivers to the Auction Agent a notice of the Auction
Date for Preferred Shares 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, the Auction Agent shall deliver such notice to SSB as promptly
as practicable after its receipt of such notice from the Fund.
(b) If the Board of Directors of the Fund proposes to designate any
succeeding Subsequent Rate Period of Preferred Shares as a Special Rate Period
and the Fund delivers to the Auction Agent a notice of such proposed Special
Rate Period in the form of Exhibit D to the Auction Agency Agreement, the
Auction Agent shall deliver such notice to SSB as promptly as practicable after
its receipt of such notice from the Fund.
(c) If the Board of Directors of the Fund determines to designate such
succeeding Subsequent Rate Period as a Special Rate Period, and the Fund
delivers to the Auction Agent a notice of such Special Rate Period in the form
of Exhibit E to the Auction Agency Agreement not later than 11:00 A.M. on the
second Business Day next preceding the first day of such proposed Special Rate
Period, the Auction Agent shall deliver such notice to SSB not later than 3:00
P.M. on such second Business Day.
(d) If the Fund delivers to the Auction Agent a notice stating that
the Fund has determined not to exercise its option to designate such succeeding
Subsequent Rate Period as a Special Rate Period with respect to which it has
delivered a notice in the form of Exhibit D to the Auction Agency Agreement not
later than 11:00 A.M. on the second Business Day next preceding the first day of
such proposed Special Rate Period, or fails to timely deliver either such notice
or a notice in the form of Exhibit E to the Auction Agency Agreement, the
Auction Agent shall deliver a notice in the form of Exhibit F to the Auction
Agency Agreement to the Broker-Dealers for Preferred Shares not later than 3:00
P.M. on such second Business Day.
2.6. Allocation of Taxable Income.
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If the Fund delivers to the 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 Preferred Shares to consist of net capital gains or other
income taxable for Federal income tax purposes, the Auction Agent shall deliver
such notice to SSB not later than the Business Day following its receipt of such
notice from the Fund. On or prior to the Auction Date referred to in such
notice, SSB will contact each of its customers that SSB believes to be an
Existing Holder of shares of Preferred Shares or a Potential Holder interested
in submitting an Order with respect to the Auction to be held on such Auction
Date, and SSB will notify such customer of the contents of such notice. SSB will
be deemed to have contacted and notified such Existing Holders and Potential
Holders if, for each such holder, (i) it makes a reasonable effort to contact
such holder by telephone, and (ii) upon failing to contact such holder by
telephone it mails or sends by telecopy written notification to such holder at
the mailing address or telecopy number as is indicated in the account records of
SSB.
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The Auction Agent shall be required to notify SSB within two Business
Days after each Auction of the Auction Agent's receipt of notice from the Fund
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.
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(a) If:
(i) any Failure to Deposit shall have occurred with respect to shares
of a series of Preferred Shares during any Rate Period thereof (other than
any Special Rate Period consisting of more than 364 Rate Period Days or any
Rate Period succeeding any Special Rate Period consisting of more than 364
Rate Period Days during which a Failure to Deposit occurred that has not
been cured); and (ii) prior to 12:00 Noon on the third Business Day next
succeeding the date on which such Failure to Deposit occurred, such Failure
to Deposit shall have been cured as described in Section 2.6(a) of the
Auction Agency Agreement and the Fund shall have paid to the Auction Agent
a late charge as described in such Section 2.6(a);
then, the Auction Agent shall deliver a notice in the form of Exhibit G to the
Auction Agency Agreement to SSB not later than one Business Day after its
receipt of the payment from the Fund curing such Failure to Deposit and such
late charge.
(b) If:
(i) any Failure to Deposit shall have occurred with respect to shares
of a series of Preferred Shares 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 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 2.6(a) of the Auction Agency
Agreement or the Fund shall not have paid to the Auction Agent the
applicable late charge, if any, described in Section 2.6(a) of the Auction
Agency Agreement; or (ii) any Failure to Deposit shall have occurred with
respect to shares of such series of Preferred Shares 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 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 2.6(a) of the
Auction Agency Agreement or the Fund shall not have paid to the Auction the
applicable late charge described in Section 2.6(a) of the Auction Agency
Agreement; then the Auction Agent shall deliver a notice in the form of
Exhibit H to the Auction Agency Agreement to SSB not later than one
Business Day after the receipt of the payment from the Fund curing such
Failure to Deposit and such late charge.
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2.8. Service Charge to be Paid to SSB.
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On the Business Day next succeeding each Auction Date for Preferred
Shares, the Auction Agent shall pay to SSB from moneys received from the Fund an
amount equal to the product of (a)(i) in the case of any Auction Date
immediately preceding a Rate Period of Preferred Shares consisting of 364 Rate
Period Days or fewer, or (ii) in the case of any Auction Date immediately
preceding the Rate Period of Preferred Shares consisting of more than 364 Rate
Period Days, such percentage as may be agreed upon by the Fund and SSB with
respect to such Rate Period times (b) a fraction, the numerator of which is the
number of days in the Rate Period therefor beginning on such Business Day and
the denominator of which is 365, times (c) $25,000, times (d) the sum of (i) the
aggregate number of shares of Preferred Shares placed by SSB in such Auction
that were (A) the subject of Submitted Bids of Existing Holders submitted by SSB
and continued to be held as a result of such submission and (B) the subject of
Submitted Bids of Potential Holders submitted by SSB and purchased as a result
of such submission plus (ii) the aggregate number of shares of Preferred Shares
subject to valid Hold orders (determined in accordance with paragraph (d) of
Section 2 of the Auction Procedures) submitted to the Auction Agent by SSB plus
(iii) the number of shares of Preferred Shares deemed to be subject to Hold
Orders by Holders pursuant to paragraph (c) of Section 2 of the Auction
Procedures that were acquired by SSB for its own account or were acquired by
such Existing Holders through SSB.
For purposes of subclause (d)(iii) of the foregoing paragraph, if any
Existing Holder who acquired shares of Preferred Shares through SSB 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 SSB; provided,
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however, that if the transfer was effected by, or if the transferee is, a
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Broker-Dealer other than SSB, then such Broker-Dealer shall be the Broker-Dealer
for such shares.
2.9. Settlement.
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(a) If any Existing Holder on whose behalf SSB has submitted a Bid or
Sell Order for shares of Preferred Shares that was accepted in whole or in part
fails to instruct its Agent Member to deliver the shares of Preferred Shares
subject to such Bid or Sell Order against payment therefor, SSB shall instruct
such Agent Member to deliver such shares against payment therefor and SSB may
deliver to the potential Holder on whose behalf SSB submitted a Bid for shares
of Preferred Shares that was accepted in whole or in part a number of shares of
Preferred Shares that is less than the number of shares of Preferred Shares
specified in such Bid to be purchased by such Potential Holder.
(b) Neither the Auction Agent nor the Fund shall have any
responsibility or liability with respect to the failure of an Existing Holder, a
Potential Holder or its respective Agent Member to deliver shares of Preferred
Shares or to pay for shares of Preferred Shares sold or purchased pursuant to
the Auction Procedures or otherwise.
(c) Notwithstanding any provision of the Auction Procedures or the
Settlement Procedures to the contrary, in the event SSB is an Existing Holder
with respect to
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shares of Preferred Shares and the Auction Procedures provide that SSB shall be
deemed to have submitted a Sell Order in an Auction with respect to such shares
if SSB fails to submit an Order in that Auction with respect to such shares, SSB
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) SSB has indicated to the Auction Agent
pursuant to Section 2.2(e) of this Agreement that, according to SSB's records,
SSB is not the Existing Holder of such shares.
(d) Notwithstanding any provision of the Auction Procedures or the
Settlement Procedures to the contrary, in the event an Existing Holder of shares
of Preferred Shares with respect to whom a Broker-Dealer submitted a Bid to the
Auction 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 therefor, partial deliveries of Preferred Shares that have been
made in respect of potential Holders' Submitted Bids for shares that have been
accepted in whole or in part shall constitute good delivery to such Potential
Holders.
(e) Notwithstanding the foregoing terms of this Section, any delivery
or non-delivery of Preferred Shares which represents any departure from the
results of an Auction for shares, as determined by the Auction Agent, shall be
of no effect for purposes of the registry of Existing Holders maintained by the
Auction Agent pursuant to the Auction Agency Agreement unless and until the
Auction Agent shall have been notified of such delivery or non-delivery.
(f) The Auction Agent shall have no duty or liability with respect to
enforcement of this Section 2.9.
3. The Auction Agent.
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3.1. Duties and Responsibilities.
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(a) The Auction Agent is acting solely as agent for the Fund hereunder
and owes no fiduciary duties to any other Person, other than the Fund, 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 by it, or
for any error of judgment made by it in the performance of its duties under this
Agreement. The Auction Agent shall not be liable for any error of judgment made
in good faith unless the Auction Agent shall have been negligent in ascertaining
(or failing to ascertain) the pertinent facts.
3.2. Rights of the Auction Agent.
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(a) The Auction Agent may rely upon, 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 believed in good faith 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 Fund or by a Broker-Dealer. The
Auction Agent may record telephone communications with the Broker-Dealers.
(b) The Auction Agent may consult with counsel of its 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.
3.3. Auction Agent's Disclaimer.
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The Auction Agent makes no representation as to the validity or
adequacy of this Agreement, the Auction Agency Agreement, the Articles
Supplementary (which include the Auction Procedures) or the Preferred Shares.
4. Miscellaneous.
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4.1. Termination.
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Any party may terminate this Agreement at any time on five days' prior
notice to the other parties. This Agreement shall automatically terminate upon
the termination of the Auction Agency Agreement.
4.2. Participant in Securities Depository.
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(a) SSB 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).
(b) SSB represents that it (or if SSB does not act as Agent Member,
one of its affiliates) shall make all dividend payments on the Preferred Shares
available in same-day funds on each Dividend Payment Date to customers that use
SSB or an affiliate of SSB as Agent Member.
4.3. Communications.
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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 either 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:
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If to the Fund, Managed Municipals Portfolio Inc.
addressed: c/o Xxxxx Xxxxxx Fund Management LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to SSB, Xxxxxxx Xxxxx Xxxxxx Inc.
addressed: 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telecopier No.:
Telephone No.:
If to the Auction Deutsche Bank Trust Company Americas,
Agent, addressed: as Auction Agent
c/o DB Services New Jersey, Inc.
000 Xxxxx Xxx
0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Auction Rate Securities Group
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
or at 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 SSB by a SSB officer and on behalf of
the Auction Agent by an Authorized Officer. SSB may record telephone
communications with the Auction Agent.
4.4. Entire Agreement.
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This Agreement contains the entire agreement among the parties hereto
relating to the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or implied,
between the parties hereto relating to the subject matter hereof.
4.5. Benefits.
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Nothing in this Agreement, express or implied, shall give to any
person, other than the Fund, the Adviser, the Auction Agent, SSB and their
respective successors and assigns, any benefit of any legal or equitable right,
remedy or claim hereunder.
4.6. Amendment; Waiver.
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(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument
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signed by a duly authorized representative of the party to be charged. No
modification or amendment shall be effective without the written consent of the
Fund effected thereby.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by any other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
(c) Notwithstanding any provision to the contrary, the Fund may, upon
five Business Days' notice to the Auction Agent and SSB, amend, alter or repeal
any of the provisions contained herein, it being understood that you shall be
deemed to have accepted any such amendment, alteration or repeal if, after the
expiration of such five Business Day period, you submit an order to the Auction
Agent in respect of the Preferred Shares.
4.7. Successors and Assigns.
----------------------
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the respective successors and assigns of each of the Fund, the
Adviser, the Auction Agent and SSB.
4.8. 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.
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 applicable to agreements made and to be
performed in said State without giving effect to the choice of law provisions
thereof.
-12-
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.
MANAGED MUNICIPALS PORTFOLIO INC.
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Auction Agent
By:
-------------------------------------
Name:
Title: Associate
XXXXXXX XXXXX XXXXXX INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
-13-
EXHIBIT A
---------
ARTICLES SUPPLEMENTARY
EXHIBIT B
---------
SETTLEMENT PROCEDURES
SETTLEMENT PROCEDURES
Capitalized terms used herein have the respective meanings specified
in the forepart of this Prospectus or the Glossary, 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 an Existing Holder or Potential
Holder of:
(i) the Applicable Rate fixed for the next succeeding Rate Period;
(ii) whether Sufficient Clearing Bids existed for the determination
of the Applicable Rate;
(iii) if such Broker-Dealer submitted a Bid or a Sell Order on behalf
of an Existing Holder, whether such Bid or Sell Order was accepted or
rejected, in whole or in part, and the number of shares, if any, of
Preferred Shares then outstanding to be sold by such Existing Holder;
(iv) if such Broker-Dealer submitted a Bid on behalf of a Potential
Holder, whether such Bid was accepted or rejected, in whole or in part, and
the number of shares, if any, of Preferred Shares to be purchased by such
Potential Holder;
(v) if the aggregate number of shares of Preferred Shares to be sold
by all Existing Holders on whose behalf such Broker-Dealer submitted Bid or
Sell Orders exceeds the aggregate number of shares 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 other Broker-Dealers (and
the Agent member, if any, of each such other Broker-Dealer) and the number
of shares of Preferred Shares to be (x) purchased from one or more Existing
Holders on whose behalf such other Broker-Dealers submitted Bids or Sell
Orders or (y) sold to one or more Potential Holders on whose behalf such
other Broker-Dealers submitted Bids; and
(vi) the scheduled Auction Date of the next succeeding Auction.
(b) On each Auction Date, each Broker-Dealer that submitted an Order
on behalf of any Existing Holder or Potential Holder shall:
(i) advise each Existing Holder and Potential Holder on whose behalf
such Broker-Dealer submitted a Bid or Sell Order whether such Bid or Sell
Order was accepted or rejected, in whole or in part;
(ii) instruct each Potential Holder on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in part, to
instruct such Bidder'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 shares of Preferred Shares to be purchased pursuant
to such Bid against receipt of such shares;
B-1
(iii) instruct each Existing Holder on whose behalf such Broker-Dealer
submitted a Bid that was accepted, in whole or in part, or a Sell Order
that was accepted, in whole or in part, to instruct such Bidder's Agent
Member to deliver to such Broker-Dealer (or its Agent Member) through the
Securities Depository the number of shares of Preferred Shares to be sold
pursuant to such Bid or Sell Order against payment therefor;
(iv) advise each Existing Holder on whose behalf such Broker-Dealer
submitted an Order and each Potential Holder on whose behalf such
Broker-Dealer submitted a Bid of the Applicable Rate for the next
succeeding Rate Period;
(v) advise each Existing Holder on whose behalf such Broker-Dealer
submitted an Order of the Auction Date of the next succeeding Auction; and
(vi) 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
of the next succeeding Auction.
(c) on the basis of the information provided to it pursuant to
paragraph (a) above, each Broker-Dealer that submitted a Bid or Sell Order shall
allocate any funds received by it pursuant to paragraph (b)(ii) above, and any
shares of Preferred Shares received by it pursuant to paragraph (b)(iii) 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 or Sell Orders, and any Broker-Dealers identified to it by the
Auction Agent pursuant to paragraph (a)(v) above.
(d) On the Business Day after the Auction Date, the Securities
Depository shall execute the transactions described above, debiting and
crediting the accounts of the respective Agent Members as necessary to effect
the purchases and sale of shares of Preferred Shares as determined in the
Auction for such series.
(e) Any delivery or nondelivery 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 nondelivery in accordance with the provisions of
the Auction Agency Agreement and the Broker-Dealer Agreement.
B-2
EXHIBIT C
---------
(Submit only one Order on this Order form)
MANAGED MUNICIPALS PORTFOLIO INC.
MUNICIPAL AUCTION RATE CUMULATIVE PREFERRED STOCK,
SERIES ___ ("Preferred Shares")
ORDER FORM __________________________
(Date of Auction)
To: Deutsche Bank Trust Company Americas
[Address]
Attention: [___________________]
The undersigned Broker-Dealer submits the following order on behalf of the
Bidder listed below:
Name of Bidder:_______________________________________
Bidder places the Order listed below covering the number of shares
indicated (complete only one blank):
______shares now held by Bidder (an Existing Holder), and the order is a
(check one):
[_] Hold Order; or
--
[_] Bid at a rate of _______%; or
[_] Sell Order;
-or-
______shares not now held by Bidder (a Potential Holder), and the Order is
a:
Bid at a rate of ______%.
Notes:
(1) If submitting more than one Order for one Bidder, use additional Order
forms.
(2) If one or more orders covering in the aggregate more than the number of
outstanding shares of Preferred Shares held by any Existing Holder are
submitted, such Orders shall be considered valid in the order of priority
set forth in the Auction Procedures.
(3) A Hold order may be placed only by an Existing Holder covering a number of
shares of Preferred Shares not greater than the number of Shares of
Preferred Shares currently held by such Existing Holder.
(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.
C-1
(5) Bids may contain no more than three figures to the right of the decimal
point (.001 of 1%).
(6) An Order submitted must cover only whole shares of Preferred Shares.
Name of Broker-Dealer:
By:____________________________
C-2
EXHIBIT D
---------
(To be used only for transfers made
other than pursuant to an Auction)
MANAGED MUNICIPALS PORTFOLIO INC.
MUNICIPAL AUCTION RATE CUMULATIVE PREFERRED SHARES,
SERIES ____ ("Preferred Shares") TRANSFER FORM
We are (check one):
[_] the Existing Holder named below;
[_] the Broker-Dealer named below; or
[_] the Agent Member for such Existing Holder.
We hereby notify YOU that such Existing Holder has transferred _________ shares
of Preferred Shares to:
Name/Social Security or Tax ID. No.:
--------------------------------------------
Address:
------------------------------
------------------------------
------------------------------
------------------------------
(Name of Existing Holder)
------------------------------
(Name of Broker-Dealer)
------------------------------
(Name of Agent Member)
By:
---------------------------
Printed Name:
Title:
D-1
EXHIBIT E
---------
(To be used only for failures to deliver shares of
Preferred Shares sold pursuant to an Auction)
MANAGED MUNICIPALS PORTFOLIO INC.
MUNICIPAL AUCTION RATE CUMULATIVE PREFERRED SHARES
SERIES __ ("Preferred Shares")
NOTICE OF A FAILURE TO DELIVER
Complete either I or II
-----------------------
I. We are a Broker-Dealer for _____________________ (the "Purchaser"),
which purchased _____________ shares of Preferred Shares
(the "Purchased Shares") in the Auction held on ____________ from the
seller of such shares.
II. We are a Broker-Dealer for ______________ (the "Seller"), which
sold ___________ shares of Preferred Shares (the "Sold Shares") in the
Auction held on _______________ to the purchaser of such shares.
We hereby notify you that (check one)--
[_] the Seller failed to deliver the Purchased Shares to the Purchaser
[_] the Purchaser failed to make payment to the Seller upon delivery of the Sold
Shares
--------------------------------------------
(Name of Broker-Dealer)
By:
-----------------------------------------
Printed Name:
Title:
E-1
