Exhibit (k)(1)
AGREEMENT, made as of June 18, 1993 between MuniYield Arizona Fund, Inc., a
corporation organized and existing under the laws of the state of Maryland
(hereinafter referred to as the "Customer"), and The Bank of New York, a New
York trust company (hereinafter referred to as the "Bank").
WITNESSETH:
That for and in consideration of the mutual promises hereinafter set forth, the
parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have the
following meanings:
1. "Business Day" shall be deemed to be each day on which the Bank is open for
business.
2. "Certificate" shall mean any notice, instruction, or other instrument in
writing, authorized or required by this Agreement to be given to the Bank by
the Customer which is signed by any Officer, as hereinafter defined, and
actually received by the Bank.
3. "Officer" shall be deemed to be the Customer's Chief Executive Officer,
President, any Vice President, the Secretary, the Treasurer, the Controller,
any Assistant Treasurer and any Assistant Secretary duly authorized by the
Board of Directors of the Customer to execute any Certificate, instruction,
notice or other instrument on behalf of the Customer and named in a Certificate
as such Certificate may be amended from time to time.
4. "Prospectus" shall mean the last Customer prospectus actually received by
the Bank from the Customer with respect to which the Customer has indicated a
registration statement under the Securities Act of 1933, as amended, has become
effective, including the statement of Additional Information incorporated by
reference therein.
5. "Shares" shall mean all or any part of each class of the shares of capital
stock of the Customer which from time to time are authorized and/or issued by
the Customer and identified in a Certificate of the Secretary of the Customer
under corporate seal, as such Certificate may be amended from time to time.
ARTICLE II
APPOINTMENT OF BANK
1. The Customer hereby constitutes and appoints the Bank as its agent to
perform the services described herein and as more particularly described in
Schedule I attached hereto (the "Services"), and the Bank hereby accepts
appointment as such agent and agrees to perform the Services in accordance with
the terms hereinafter set forth.
2. In connection with such appointment, the Customer shall deliver the
following documents to the Bank on or about the closing date of the initial
public offering:
(a) A certified copy of the Certificate of Incorporation or other
document evidencing the Customer's form of organization (the "Charter") and all
amendments thereto;
(b) A certified copy of the By-Laws of the Customer;
(c) A certified copy of a resolution of the Board of Directors of the
Customer appointing the Bank to perform the Services and authorizing the
execution and delivery of this Agreement;
(d) A Certificate signed by the Secretary of the Customer specifying the
number of authorized Shares, the number of such authorized Shares issued and
currently outstanding, and the names and specimen signatures of all persons
duly authorized by the Board of Directors of the Customer to execute any
Certificate on behalf of the Customer, which Certificate may be amended from
time to time;
(e) A Specimen Share certificate for each class of Shares in the form
approved by the Board of Directors of the Customer, together with a Certificate
signed by the Secretary of the Customer as to such approval;
(f) A copy of the Customer's Registration Statement, filed by the
Customer with the Securities and Exchange Commission under the Securities Act
of 1933, as amended.
(g) An opinion of counsel for the Customer with respect to the validity
of the authorized and outstanding Shares, whether such Shares are fully paid
and non-assessable and the status of such Shares under the Securities Act of
1933, as amended, and any other applicable law or regulation (i.e., if subject
to registration, that they have been registered and that the Registration
Statement has become effective or, if exempt, the specific grounds therefor).
3. The Customer shall furnish the Bank with a sufficient supply of blank Share
certificates and from time to time will renew such supply upon request of the
Bank. Such blank Share certificates shall be properly signed, by facsimile or
otherwise, by officers of the Customer authorized by law or by the By-Laws to
sign Share certificates, and, if required, shall bear the corporate seal or a
facsimile thereof.
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. The Customer shall deliver to the Bank a certified copy of the amendment to
the Charter giving effect to such increase, decrease or change, on or before
the effective date of any increase, decrease or other change in the total
number of Shares authorized to be issued.
(a) A certified copy of the amendment to the Charter giving effect to
such increase, decrease or change;
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(b) An opinion of counsel for the Customer with respect to the validity
of the Shares and the status of such Shares under the Securities Act of 1933,
as amended, and any other applicable federal law or regulations (i.e., if
subject to registration, that they have been registered and that the
Registration Statement has become effective or, if exempt, the specific grounds
therefor); and
(c) In the case of an increase, if the appointment of the Bank was
theretofore expressly limited, a certified copy of a resolution of the Board of
Directors of the Customer increasing the authority of the Bank.
2. Prior to the issuance of any additional Shares pursuant to stock dividends,
stock splits or otherwise, and prior to any reduction in the number of Shares
outstanding, the Customer shall deliver the following documents to the Bank:
(a) A certified copy of the resolutions adopted by the Board of Directors
and/or the shareholders of the Customer authorizing such issuance of
additional
Shares of the Customer or such reduction, as the case may be;
(b) A certified copy of the order or consent, if applicable, of each
governmental or regulatory authority required by law as a prerequisite to the
issuance or reduction of such Shares; and
(c) An opinion of counsel for the Customer with respect to the validity
of the Shares and the status of such the Shares under the Securities Act of
1933, as amended, and any other applicable law or regulation (i.e., if subject
to registration, that they have been registered and that the Registration
Statement has become effective, or, if exempt, the specific grounds therefor).
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or other capital
adjustment requiring a change in the form of Share certificates, the Bank will
issue Share certificates in the new form in exchange for, or upon transfer of,
outstanding Share certificates in the old form, upon receiving:
(a) A Certificate authorizing the issuance of Share certificates in the
new form;
(b) A certified copy of any amendment to the Charter with respect to the
change;
(c) Specimen Share certificates for each class of Shares in the new, form
approved by the Board of Directors of the Customer, with a Certificate signed
by the Secretary of the Customer as to such approval;
(d) A certified copy of the order or consent of each governmental or
regulatory authority required by law as a prerequisite to the issuance of the
Shares in the new form, and an opinion of counsel for the Customer that the
order or consent of no other governmental or regulatory authority is required;
and
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(e) An opinion of counsel for the Customer with respect to the validity
of the Shares in the new form and the status of such Shares under the
Securities Act of 1933, as amended, and any other applicable law or regulation
(i.e., if subject to registration that the Shares have been registered and that
the Registration Statement has become effective or, if exempt, the specific
grounds therefor).
2. The Customer shall furnish the Bank with a sufficient supply of blank Share
certificates in the new form, and from time to time will replenish such supply
upon the request of the Bank. Such blank Share certificates shall be properly
signed, by facsimile or otherwise, by Officers of the Customer authorized by
law or by the By-Laws to sign Share Certificates and, if required, shall bear
the corporate seal or a facsimile thereof.
ARTICLE V
ISSUANCE AND TRANSFER OF SHARES
1. (a) The Bank will issue Share certificates upon receipt of a Certificate
from an Officer, but shall not be required to issue Share certificates after it
has received from an appropriate federal or state authority written
notification that the sale of Shares has been suspended or discontinued, and
the Bank shall be entitled to rely upon such written notification. The Bank
shall not be responsible for the payment of any original issue or other taxes
required to be paid by the Customer in connection with the issuance of any
shares.
(b) Shares will be transferred upon presentation to the Bank of Share
certificates in form deemed by the Bank properly endorsed for transfer,
accompanied by such documents as the Bank deems necessary to evidence the
authority of the person making such transfer, and bearing satisfactory evidence
of the payment of applicable stock transfer taxes. In the case of small estates
where no administration is contemplated, the Bank may, when furnished with an
appropriate surety bond, and without further approval of the Customer, transfer
Shares registered in the name of the decedent where the current market value of
the Shares being transferred does not exceed such amount as may from time to
time be prescribed by the various states. The Bank reserves the right to refuse
to transfer Shares until it is satisfied that the endorsements on Share
certificates are valid and genuine, and for that purpose it may require, unless
otherwise instructed by an Officer of the Customer, a guaranty of signature by
a member firm of the New York Stock Exchange or by a bank or trust company
acceptable to the Bank. The Bank also reserves the right to refuse to transfer
Shares until it is satisfied that the requested transfer is legally authorized,
and it shall incur no liability for the refusal in good faith to make transfers
which the Bank, in its judgment, deems improper or unauthorized, or until it is
satisfied that there is no basis to any claims adverse to such transfer. The
Bank may, in effecting transfers of Shares, rely upon those provisions of the
Uniform Act for the Simplification of Fiduciary Security Transfers or the
Uniform Commercial Code, as the same may be amended from time to time,
applicable to the transfer of securities, and the Customer shall indemnify the
Bank for any act done or omitted by it in good faith in reliance upon such
laws.
(c) All certificates representing Shares that are subject to restrictions
on transfer (e.g., securities acquired pursuant to an investment
representation, securities held by controlling persons, securities subject to
stockholders' agreements, etc.), other than the general restrictions
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on the transferability of the Shares described in the Prospectus, shall be
stamped with a legend describing the extent and conditions of the restrictions
or referring to the source of such restrictions. The Bank assumes no
responsibility with respect to the transfer of restricted securities where
counsel for the Customer advises that such transfer may be properly effected.
(d) Notwithstanding the foregoing or any other provision contained in
this Agreement to the contrary, the Bank shall be fully protected by the
Customer in not requiring any instruments, documents, assurances, endorsements
or guarantees, including, without limitation, any signature guarantees, in
connection with a transfer of Shares whenever the Bank reasonably believes that
requiring the same would be inconsistent with the transfer procedures as
described in the Prospectus.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Customer shall furnish to the Bank a copy of a resolution of its Board
of Directors, certified by the Secretary or any Assistant Secretary, either (i)
setting forth the date of the declaration of a dividend or distribution, the
date of accrual or payment, as the case may be, the record date as of which
shareholders entitled to payment, or accrual, as the case may be, shall be
determined, the amount per Share of such dividend or distribution, the payment
date on which all previously accrued and unpaid dividends are to be paid, and
the total amount, if any, payable to the Bank on such payment date, or (ii)
authorizing the declaration of dividends and distributions on a periodic basis
and authorizing the Bank to rely on a Certificate setting forth the information
described in subsection (i) of this paragraph.
2. Prior to the payment date specified in such Certificate or resolution, as
the case may be, the Customer shall, in the case of a cash dividend or
distribution, pay to the Bank an amount of cash, sufficient for the Bank to
make the payment, specified in such Certificate or resolution, to the
shareholders of record as of such payment date. The Bank will, upon receipt of
any such cash, (i) in the case of shareholders who are participants in a
dividend reinvestment and/or cash purchase plan of the Customer, reinvest such
cash dividends or distributions in accordance with the terms of such plan, and
(ii) in the case of shareholders who are not participants in any such plan,
make payment of such cash dividends or distributions to the shareholders of
record as of the record date by mailing a check, payable to the registered
shareholder, to the address of record or dividend mailing address. The Bank
shall not be liable for any improper payment made in accordance with a
Certificate or resolution described in the preceding paragraph. If the Bank
shall not receive sufficient cash prior to the payment date to make payments of
any cash dividend or distribution pursuant to subsections (i) and (ii) above to
all shareholders of the Customer as of the record date, the Bank shall, upon
notifying the Customer, withhold payment to all shareholders of the Customer as
of the record date until sufficient cash is provided to the Bank.
3. It is understood that the Bank shall in no way be responsible for the
determination of the rate or form of dividends or distributions due to the
shareholders.
4. It is understood that the Bank shall file such appropriate information
returns concerning the payment of dividends and distributions with the proper
federal, state and local authorities as
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are required by law to be filed by the Customer but shall in no way be
responsible for the collection or withholding of taxes due on such dividends or
distributions due to shareholders, except and only to the extent required of it
by applicable law.
ARTICLE VII
CONCERNING THE CUSTOMER
1. The Customer shall promptly deliver to the Bank written notice of any change
in the Officers authorized to sign Share certificates, Certificates,
notifications or requests, together with a specimen signature of each new
Officer. In the event any Officer who shall have signed manually or whose
facsimile signature shall have been affixed to blank Share certificates shall
die, resign or be removed prior to issuance of such Share certificates, the
Bank may issue such Share certificates as the Share certificates of the
Customer notwithstanding such death, resignation or removal, and the Customer
shall promptly deliver to the Bank such approvals, adoptions or ratifications
as may be required by law.
2. Each copy of the Charter of the Customer and copies of all amendments
thereto shall be certified by the Secretary of State (or other appropriate
official) of the state of incorporation, and if such Charter and/or amendments
are required by law also to be filed with a county or other officer or official
body, a certificate of such filing shall be filed with a certified copy
submitted to the Bank. Each copy of the By-Laws and copies of all amendments
thereto, and copies of resolutions of the Board of Directors of the Customer,
shall be certified by the Secretary or an Assistant Secretary of the Customer
under the corporate seal.
3. It shall be the sole responsibility of the Customer to deliver to the Bank
the Customer's currently effective Prospectus and, for purposes of this
Agreement, the Bank shall not be deemed to. have notice of any information
contained in such Prospectus until it is actually received by the Bank.
ARTICLE VIII
CONCERNING THE BANK
1. The Bank shall not be liable and shall be fully protected in acting upon any
oral instruction, writing or document reasonably believed by it to be genuine
and to have been given, signed or made by the proper person or persons and shag
not be held to have any notice of any change of authority of any person until
receipt of written notice thereof from an Officer of the Customer. It shall
also be protected in processing Share certificates which it reasonably believes
to bear the proper manual or facsimile signatures of the duly authorized
officers of the Customer and the proper countersignature of the Bank.
2. The Bank may establish such additional procedures, rules and regulations
governing the transfer or registration of Share certificates as it may deem
advisable and consistent with such rules and regulations generally adopted by
bank transfer agents.
3. The Bank may keep such records as it deems advisable but not inconsistent
with resolutions adopted by the Board of Directors of the Customer. The Bank
may deliver to the
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Customer from time to time at its discretion, for safekeeping or disposition by
the Customer in accordance with law, such records, papers, Share certificates
which have been cancelled in transfer or exchange and other documents
accumulated in the execution of its duties hereunder as the Bank may deem
expedient, other than those which the Bank is itself required to maintain
pursuant to applicable laws and regulations, and the Customer shall assume all
responsibility for any failure thereafter to produce any record, paper,
cancelled Share certificate or other document so returned, if and when
required. The records maintained by the Bank pursuant to this paragraph which
have not been previously delivered to the Customer pursuant to the foregoing
provisions of this paragraph shall be considered to be the property of the
Customer, shall be made available upon request for inspection by the Officers,
employees and auditors of the Customer, and shall be delivered to the Customer
upon request and in any event upon the date of termination of this Agreement,
as specified in Article IX of this Agreement, in the form and manner kept by
the Bank on such date of termination or such earlier date as maybe requested by
the Customer.
4. The Bank may employ agents or attorneys-in-fact at the reasonable expense of
the Customer, and shall not be liable for any loss or expense arising out of,
or in connection with, the actions or omissions to act of its agents or
attorneys-in-fact, so long as the Bank acts in good faith and without
negligence or willful misconduct in connection with the selection of such
agents or attorneys-in-fact.
5. The Bank shall not be liable for any loss or damage, including reasonable
attorney's fees, resulting from its actions or omissions to act or otherwise,
except for any loss or damage arising out of its own negligence or willful
misconduct.
6. The Customer shall indemnify and hold harmless the Bank from and against any
and all claims (whether with or without basis in fact or law), costs, demands,
expenses and liabilities, including reasonable attorney's fees, which the Bank
may sustain or incur or which may be asserted against the Bank by reason of or
as a result of any action taken or omitted to be taken by the Bank without its
own negligence or willful misconduct in reliance upon (i) any provision of this
agreement, (i) the Prospectus, (iii) any instrument, order or Share certificate
reasonably believed by it to be genuine and to be signed, countersigned, or
executed by any duly authorized Officer of the Customer, (iv) any Certificate
or other instructions of an Officer, (v) any opinion of legal counsel for the
Customer or the Bank, or (vi) any law, act, regulation or any interpretation of
the same even though such law, act or regulation may thereafter have been
altered, changed, amended or repealed.
7. Specifically, but not by way of limitation, the Customer shall indemnify and
hold harmless the Bank from and against any and all claims (whether with or
without basis in fact or law), costs, demands, expenses and liabilities,
including reasonable attorney's fees, of any and every nature which the Bank
may sustain or incur or which may be asserted against the Bank in connection
with the genuineness of a Share certificate, the Bank's capacity and
authorization to issue Shares and the form and amount of authorized Shares.
8. At any time the Bank may apply to an Officer of the Customer for written
instructions with respect to any matter arising in connection with the Bank's
duties and obligations under this Agreement, and the Bank shat not be liable
for any action taken or omitted to be taken by the Bank in good faith in
accordance with such instructions. Such application by the Bank for
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instructions from an Officer of the Customer may, at the option of the Bank,
set forth in writing any action proposed to be taken or omitted to be taken by
the Bank with respect to its duties or obligations under this Agreement and the
date on and/or after which such action shall be taken, and the Bank shall not
be liable for any action taken or omitted to be taken in accordance with a
proposal included in any such application on or after the date specified
therein unless, prior to taking or omitting to take any such action, the Bank
has received written instructions in response to such application specifying
the action to be taken or omitted. The Bank may consult, counsel to the
Customer or its own counsel, at the expense of the Customer, and shall be fully
protected with respect to anything done or omitted by it in good faith in
accordance with the advice or opinion of such counsel.
9. When mad is used for delivery of non-negotiable Share certificates, the
value of which does not exceed the limits of the Bank's Blanket Bond, the Bank
shall send such non-negotiable Share certificates by first class mail, and such
deliveries will be covered while in transit by the Bank's Blanket Bond.
Non-negotiable Share certificates, the value of which exceed the limits of the
Bank's Blanket Bond, will be sent by insured registered mail. Negotiable Share
certificates will be sent by insured registered mail. The Bank shall advise the
Customer of any Share certificates returned as undeliverable after being mailed
as herein provided for.
10. The Bank may issue new Share certificates in place of Share certificates
represented to have been lost, stolen or destroyed upon receiving instructions
in writing from an Officer and indemnity satisfactory to the Bank. Such
instructions from the Customer shall be in such form as approved by the Board
of Directors of the Customer in accordance with applicable law or the By-Laws
of the Customer governing such matters. If the Bank receives written
notification from the owner of the lost, stolen or destroyed Share certificate
within a reasonable time after he has notice of it, the Bank shall promptly
notify the Customer and shall act pursuant to written instructions signed by an
Officer. If the Customer receives such written notification from the owner of
the lost, stolen or destroyed Share certificate within a reasonable time after
he has notice of it, the Customer shall promptly notify the Bank and the Bank
shall act pursuant to written instructions signed by an Officer. The Bank shall
not be liable for any act done or omitted by it pursuant to the written
instructions described herein. The Bank may issue new Share certificates in
exchange for, and upon surrender of, mutilated Share certificates.
11. The Bank will issue and mail subscription warrants for Shares, Shares
representing stock dividends, exchanges or splits, or act as conversion agent
upon receiving written instructions from an Officer and such other documents as
the Bank may deem necessary.
12. The Bank will supply shareholder lists to the Customer from time to time
upon receiving a request therefor from an Office of the Customer.
13. In case of any requests or demands for the inspection of the shareholder
records of the Customer, the Bank will notify the Customer and endeavor to
secure instructions from an officer as to such inspection. The Bank reserves
the right, however, to exhibit the shareholder records to any person whenever
it is advised by its counsel that there is a reasonable likelihood that the
Bank will be held liable for the failure to exhibit the shareholder records to
such person.
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14. At the request of an Officer, the Bank will address and mail such
appropriate notices to shareholders as the Customer may direct.
15. Notwithstanding any provisions of this Agreement to the contrary, the Bank
shall be under no duty or obligation to inquire into, and shall not be liable
for:
(a) The legality of the issue, sale or transfer of any Shares, the
sufficiency of the amount to be received in connection therewith, or the
authority of the Customer to request such issuance, sale or transfer;
(b) The legality of the purchase of any Shares, the sufficiency of the
amount to be paid in connection therewith, or the authority of the Customer to
request such purchase;
(c) The legality of the declaration of any dividend by the Customer, or
the legality of the issue of any Shares in payment of any stock dividend; or
(d) The legality of any recapitalization or readjustment of the Shares.
16. The Bank shall be entitled to receive and the Customer hereby agrees to pay
to the Bank for its performance hereunder (i) out-of-pocket expenses (including
reasonable attorney's fees and expenses) incurred in connection with this
Agreement and its performance hereunder, and (ii) the compensation for services
as set forth in Schedule I.
17. The Bank shall not be responsible for any money, whether or not represented
by any check, draft or other instrument for the payment of money, received by
it on behalf of the Customer, until the Bank actually receives and collects
such funds.
18. The Bank shall have no duties or responsibilities whatsoever except such
duties and responsibilities as are specifically set forth in this Agreement,
and no covenant or obligation shall be implied against the Bank in connection
with this Agreement.
ARTICLE IX
TERMINATION
Either of the parties hereto may terminate this Agreement by giving to the
other party a notice in writing specifying the date of such termination, which
shall be not less than 60 days after the date of receipt of such notice. In the
event such notice is given by the Customer, it shall be accompanied by a copy
of a resolution of the Board of Directors of the Customer, certified by the
Secretary electing to terminate this Agreement and designating a successor
transfer agent or transfer agents. In the event such notice is given by the
Bank, the Customer shall, on or before the termination date, deliver to the
Bank a copy of a resolution of its Board of Directors certified by the
Secretary designating a successor transfer agent or transfer agents. In the
absence of such designation by the Customer, the Bank may designate a successor
transfer agent. If the Customer fails to designate a successor transfer agent
and if the Bank is unable to find a successor transfer agent, the Customer
shall, upon the date specified in the notice of termination of this Agreement
and delivery of the records maintained hereunder, be deemed to be its own
transfer agent and the Bank shall thereafter be relieved of all duties and
responsibilities hereunder. Upon termination
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hereof, the Customer shall pay to the Bank such compensation as may be due to
the Bank as of the date of such termination, and shall reimburse the Bank for
any disbursements and expenses made or incurred by the Bank and payable or
reimbursable hereunder.
ARTICLE X
MISCELLANEOUS
1. The Customer agrees that prior to effecting any change in the Prospectus
which would increase or alter the duties and obligations of the Bank hereunder,
it shall advise the Bank of such proposed change at least ten business days
prior to the intended date of the same, and shall proceed with such change only
if it shall have received the written consent of the Bank thereto.
2. The indemnities contained herein shall be continuing obligations of the
Customer, its successors and assigns, notwithstanding the termination of this
Agreement.
3. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Customer shall be sufficiently given if addressed
to the Customer and mailed or delivered to it at 000 Xxxxxxxx Xxxx Xxxx,
Xxxxxxxxxx, XX 00000 or at such place as the Customer may from time to time
designate in writing.
4. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Bank shall be sufficiently given if addressed to
the Bank and mailed or delivered to it at its office at 000 Xxxxxxx Xxxxxx
(00X), Xxx Xxxx, Xxx Xxxx 00000 or at such other place as the Bank may from
time to time designate in writing.
5. This Agreement may not be amended or modified in any manner except by a
written agreement duly authorized and executed by both parties. Any duly
authorized Officer may amend any Certificate naming Officers authorized to
execute and deliver Certificates, instructions, notices or other instruments,
and the Secretary or any Assistant Secretary may amend any Certificate listing
the shares of capital stock of the Customer for which the Bank performs
Services hereunder.
6. This Agreement shall extend to and shall be binding upon the parties hereto
and their respective successors and assigns; provided however, that this
Agreement shall not be assignable by either party without the prior written
consent of the other party.
7. This Agreement shall be governed by and construed in accordance with the.
laws of the State of New York
8. This Agreement may be executed in any number of counterparts each of which
shall be deemed to be an original; but such counterparts, together, shall
constitute only one instrument.
9. The provisions of this Agreement are intended to benefit only the Bank and
the Customer, and no rights shall be granted to any other person, by virtue of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officer, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as of the day and year
first above written.
Attest: MUNIYIELD ARIZONA FUND, INC.
BY:
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Title: Treasurer
Attest: THE BANK OF NEW YORK
BY:
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Title: Vice President
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