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XXXXXX MUNICIPAL OPPORTUNITIES TRUST
AND
XXXXXX INVESTMENT MANAGEMENT, INC.
AND
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Dated June __, 1997
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, dated June __, 1997 (the ""), by and among Xxxxxx Municipal Opportunities Trust, a Massachusetts
business trust (the "Fund"), Xxxxxx Investment Management, Inc., a Massachusetts
corporation (the "Adviser"), and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, a Delaware corporation ("Xxxxxxx Xxxxx").
W I T N E S S E T H:
WHEREAS, the Fund expects to issue 1,620 remarketed preferred
shares of beneficial interest ("RP"(R)), Series B (the "Series B RP") and 1,620
remarketed preferred shares of beneficial interest, Series C (the "Series C
RP"), without par value and with a liquidation preference of $25,000 per share
plus accumulated but unpaid dividends (the Series B RP and Series C RP are
referred to together herein as "Shares"), pursuant to and with the powers,
preferences and rights assigned to them in the amended and restated by-laws of
the Fund (as amended from time to time, the "By-laws");
WHEREAS, all Shares will initially be sold to and purchased by
Xxxxxxx Xxxxx pursuant to the terms of a purchase agreement (the "Purchase
Agreement"), dated June __, 1997, among the Fund, the Adviser and Xxxxxxx Xxxxx;
WHEREAS, the Fund has requested Xxxxxxx Xxxxx to act as the
Remarketing Agent under this Agreement in accordance with the provisions of the
By-laws (and the Trustees of the Fund have adopted a resolution appointing
Xxxxxxx Xxxxx as Remarketing Agent) (i) to set the Applicable Dividend Rate on
each series of the Shares from time to time on behalf of the Fund, and (ii) to
remarket Shares tendered to them 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
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(R) Registered trademark of Xxxxxxx Xxxxx & Co., Inc.
WHEREAS, Xxxxxxx Xxxxx is willing to assume such duties on the
terms and conditions expressly set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein contained, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein
that are not otherwise defined shall have the meanings assigned
to them in the By-laws.
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 exclusive Remarketing Agent for the
purpose of (i) setting the Applicable Dividend Rate on each series of 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 By-laws, all pursuant to the procedures
set forth in the By-laws. 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 or any series thereof 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 each series of
the Shares; (ii) to use its best efforts to set in Remarketings the Applicable
Dividend Rate on each series of the Shares; (iii) to notify the Fund promptly of
the Applicable Dividend Rate with respect to each series of Shares; (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 By-laws; and (v) to carry
out such other duties as are assigned to the Remarketing Agent in the Bylaws,
all in accordance with the provisions of the By-laws.
(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.
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(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.
(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 of a series or to remarket Shares of a
series during a Non-Payment Period for such series, 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
with respect to such series or at any time any of the events set forth in clause
(c) of Section 7 hereof shall have occurred with respect to such series.
(f) By 3:30 p.m. on each Remarketing Date for such series, 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 of such series held by) the Beneficial Owners in whose names
Shares of such series are to be registered in the books maintained by the Paying
Agent who purchased such Shares as a result of the Remarketing; and (iii) the
identities of (and number of Shares of such series sold by) persons (i.e.,
former Beneficial Owners) in whose names Shares of such series were registered
in the books maintained by the Paying Agent who sold Shares in the Remarketing.
By 3:30 p.m. 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 the Shares of such series, but not later than the fifth Business Day after
the Date of Original Issue for such Shares, the Remarketing Agent will provide
the Paying Agent with (i) a list of the Beneficial Owners (other than the
Remarketing Agent) in whose names Shares of such series are to be registered in
the books to be maintained by the Paying Agent and the respective numbers of
Shares of such series acquired by such Beneficial Owners from the Remarketing
Agent and (ii) the number of Shares of such series they are holding as
Beneficial Owners for their 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 of such series outside a
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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 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.
(i) The Remarketing Agent agrees that, whenever it receives
the notice from the Fund contemplated by the first sentence of Section 3(m) of
Part I of Section 12.1 of the Bylaws, it will in turn notify the Holders of
Shares of such series and prospective purchasers believed by it to be interested
in purchasing Shares of such series 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, as and
to the extent permitted by the By-laws from time to time, modify the settlement
procedures set forth in the By-laws so long as any such modification does not
adversely affect the Beneficial Owners or the Holders of the Shares or 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 By-laws,
provided that any such modification does not adversely affect any Holder or any
Beneficial Owner of Shares or materially alter the obligations of the Paying
Agent or the Fund; and further provided that, for so long as Xxxxx'x or S&P
shall rate any Shares, the Fund receives confirmation from Xxxxx'x or S&P, as
the case may be, that any such modification would not impair the ratings then
assigned by Xxxxx'x or S&P, as the case may be, to the Shares.
Section 3. Fees and Expenses. For the performance of
its services as Remarketing Agent hereunder with respect to each
series of Shares, the Fund shall pay to the Remarketing Agent on
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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) for such series an
aggregate fee for each Share of such series outstanding on such day which shall
be calculated by multiplying, (i) the product of 0.25% times $25,000 by (ii) the
product of 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 of such series be a Special
Dividend Period of longer than 60 days, then during such Dividend Period the fee
for such Share of such series will not be calculated in the aforesaid manner,
and, with respect to such Share of such series, 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 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
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 a 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 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 Bylaws 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 By-laws. 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
5
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 Agreement and Declaration of Trust of the Fund (the
"Declaration of Trust"), 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 the Remarketing Agent with respect to
the Shares by giving at least 60 days' prior written notice to the Remarketing
Agent, the Securities Depository and the Paying Agent; provided, however, that
no such removal nor any such resignation 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
By-laws. 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 requiring any additional 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. The Remarketing Agent, 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) the
Remarketing Agent may hold Shares of such series for its own account upon
completion of a Remarketing for such series only if the Applicable Dividend Rate
established with respect to such Shares
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in the Remarketing is no higher than the Applicable Dividend Rate that would
have been set if such Remarketing Agent did not hold or had not purchased such
Shares and (ii) the Remarketing Agent may purchase Shares of a series for its
own account or the accounts of others in a Remarketing for such series only if
it purchases all tendered Shares of such series not sold in the Remarketing to
other purchasers. Except as provided in clause (ii) of the preceding sentence,
the Remarketing Agent is not obligated to purchase any Shares that would
otherwise remain unsold in a Remarketing. If the Remarketing Agent holds any
Shares of a series for its own account immediately prior to a Remarketing and if
all other Shares tendered for sale have been sold in such Remarketing, then the
Remarketing Agent may sell, in such Remarketing, such number of Shares held by
it for its own account as there are outstanding orders to purchase that have not
been filled by Shares tendered for sale on behalf of accounts other than that of
the Remarketing Agent. The Remarketing Agent may exercise any vote or consent or
take or join in any action which any Holder of Shares may be entitled to
exercise or take pursuant to the By-laws with like effect as if it did not act
in any capacity hereunder. The Remarketing Agent, 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.
Section 6. Information.
(a) The Fund agrees to furnish to the Remarketing Agent: (i)
copies of the Declaration of Trust 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 purchase of Shares, either in a Remarketing or otherwise, by an
affiliate of the Fund as soon as the Fund shall become aware of such purchase;
(iii) 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 (iv) in connection with the
Remarketing of the Shares of any series, such other remarketing information as
the Remarketing Agent 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 of any series and consents to the
use thereof for such purpose.
(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
of any series shall occur which might affect the accuracy or completeness of any
statement of a material fact contained in any of the reports, documents,
7
materials and information referred to in clause (a) above or any document
incorporated therein by reference (collectively, the "Remarketing Materials")
considered as a whole 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. For
purposes of this Agreement, the term Remarketing Materials shall not include any
materials that have been modified or superseded by any subsequently provided
materials.
(c) None of the information contained in any of the
Remarketing Materials shall contain, as of its date, 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
circumstance 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 each series of 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 (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 such series of 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 such series of Shares or the
Remarketing Agent's ability to remarket such series of Shares; (ii) all of such
series of Shares shall have been called for redemption; or (iii) without the
prior written consent of the Remarketing Agent, the Declaration of Trust, the
By-laws or 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 such series of 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 (collectively, the "Indemnifying Parties" and
individually an "Indemnifying Party"), jointly and severally,
agree to indemnify and hold harmless the Remarketing Agent, its
officers, directors and employees and each person, if any, who
8
controls the Remarketing Agent within the meaning of Section 20 of the
Securities Exchange Act of 1934 (collectively, the "Indemnified Parties" and
individually, an "Indemnified Party") as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in any of the Remarketing Materials or any
revision thereof or supplement thereto, or the omission or
alleged omission therefrom of a material fact required to be
stated in any of the Remarketing Materials or any revision
thereof or supplement thereto or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject
to Section 8(c) below) any such settlement is effected with
the written consent of the Fund and the Adviser; and
(iii) against any and all expenses whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Remarketing Agent), reasonably incurred in investigating,
preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of the use by the
Remarketing Agent of any information that is not contained in the Remarketing
Materials. 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 Party.
(b) Each Indemnified Party shall give notice as promptly as
reasonably practical to each Indemnifying Party of any action commenced against
it in respect of which indemnity may be sought hereunder, but failure to so
notify an Indemnifying
9
Party shall not relieve such Indemnifying Party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An Indemnifying Party may participate at
its own expense in the defense of such action; provided, however, that counsel
to the Indemnifying Party shall not (except with the consent of the Indemnified
Party) also be counsel to the Indemnified Party. In no event shall the
Indemnifying Parties be liable for the fees and expenses of more than one
counsel (in addition to local counsel) separate from their own counsel for all
Indemnified Parties 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. No Indemnifying Party shall, without the prior
written consent of the Indemnified Parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification could be sought under
this Section 8 (whether or not the Indemnified Parties are actual or potential
Parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each Indemnified Party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any Indemnified Party.
(c) If at any time an Indemnified Party shall have requested
an Indemnifying Party to reimburse the Indemnified Party for fees and expenses
of counsel, such Indemnifying Party agrees that it shall be liable for any
settlement of the nature contemplated by Section 8(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 90 days after
receipt by such Indemnifying Party of the aforesaid request, (ii) such
Indemnifying Party shall have received notice of the terms of such settlement at
least 60 days prior to such settlement being entered into and (iii) such
Indemnifying Party shall not have reimbursed such Indemnified Party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
Indemnified Party shall have requested an Indemnifying Party to reimburse the
Indemnified Party for fees and expenses of counsel, an Indemnifying Party shall
not be liable for any settlement of the nature contemplated by Section 8(a)(ii)
effected without its consent if such Indemnifying Party (i) reimburses such
Indemnified Party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
Indemnified Party objecting to the unpaid balance as unreasonable, in each case
prior to the date of such settlement.
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(d) 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 indemnified
persons specified in clause (i) 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 hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve Xxxxxxx Xxxxx
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 Xxxxxxx Xxxxx, which consent shall not be unreasonably withheld.
Xxxxxxx Xxxxx may participate at its own expense in the defense of any such
action; provided, however, that counsel to Xxxxxxx Xxxxx shall not (except with
the consent of the indemnified persons specified in clause (i) above) also be
counsel to the indemnified persons specified in clause (i) above. In no event
shall Xxxxxxx Xxxxx be liable for the fees and expenses of more than one counsel
(in addition to local counsel) separate from its own counsel for all parties
indemnified in this Section 8(d) 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.
(e) The indemnity agreement contained in clauses (a), (b), (c)
and (d) of this Section shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Indemnified Person,
and shall survive the termination or cancellation of this Agreement and the
remarketing of the 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
11
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 with respect to
the Shares.
(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 with respect to the Shares 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.
(c) Notwithstanding any other provision of this Agreement, in
the event of a Material Change, the Fund shall, within 60 days following receipt
of the written 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, 60 days
following written notice from 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 By-laws. No implied
covenants or obligations shall be read into this Remarketing Agreement or the
By-laws. 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
By-laws as to the truth of the statements expressed in any of such 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. The Remarketing Agent shall not incur any
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.
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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 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 any Remarketing Agent
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 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.
13
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 its individual capacity as purchaser of those Shares it 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 By-laws in effect as of the
date of any such amendment.
Section 20. Liability of Shareholders, Trustees and Officers.
A copy of the Agreement and 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 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
Agreement and Declaration of Trust and By-laws of the Fund 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
14
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 Xxx Xxxx Xxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000. Attention: Xx.
Xxxx X. Xxxxxx, Vice President, and if to the Remarketing Agent, to Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx World Headquarters,
World Financial Center - Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Remarketed Preferred Transactions Desk, 7th Floor; or to such other address as
any such party shall specify to the other party in writing.
15
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.
XXXXXX MUNICIPAL OPPORTUNITIES TRUST
By:
---------------------------------
Authorized Signatory
XXXXXX INVESTMENT MANAGEMENT, INC.
By:
---------------------------------
Authorized Signatory
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:
---------------------------------
Authorized Signatory
16
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.
XXXXXX MUNICIPAL OPPORTUNITIES TRUST
By:
---------------------------------
Authorized Signatory
XXXXXX INVESTMENT MANAGEMENT, INC.
By:
---------------------------------
Authorized Signatory
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------
Authorized Signatory
17
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.
XXXXXX MUNICIPAL OPPORTUNITIES TRUST
By:
-------------------------------------
Authorized Signatory
XXXXXX INVESTMENT MANAGEMENT, INC.
By:
-------------------------------------
Authorized Signatory
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------
Authorized Signatory
18
EXHIBIT A
---------
[Remarketing Agent to
Paying Agent - to be used only for transfers
made other than pursuant to a Remarketing]
XXXXXX MUNICIPAL OPPORTUNITIES TRUST
REMARKETED PREFERRED SHARES OF BENEFICIAL INTEREST,
SERIES [B] [C] ("RP"(R))
TRANSFER FORM
The undersigned hereby notifies you that:
-----------------------------------------
(Print name of existing beneficial owner)
has sold ______ Shares of Series [B] [C] RP to
-----------------------------------------
(Print name of new beneficial owner)
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:
-------------------------------------
Authorized Signatory
-------------------------
(R) Registered trademark of Xxxxxxx Xxxxx & Co., Inc.
19