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BLACKROCK NEW YORK MUNICIPAL INCOME TRUST II
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FORM OF AUCTION AGENCY AGREEMENT
DATED AS OF SEPTEMBER 19, 2002
RELATING TO
AUCTION MARKET PREFERRED SHARES
OF
BLACKROCK NEW YORK MUNICIPAL INCOME TRUST II
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS AUCTION AGENT
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This Auction Agency Agreement (this "Agreement"), dated as of September 19,
2002, is between BlackRock New York Municipal Income Trust II (the "Trust") and
Deutsche Bank Trust Company Americas, a New York banking corporation.
The Trust proposes to issue three series of preferred shares of beneficial
interest ( shares of Series , shares of Series and shares of
Series ), par value $.001 per share, liquidation preference $25,000 per
share, designated as Series , Series and Series Auction Market
Preferred Shares (cumulatively, the "AMPS"), pursuant to the Trust's Statement
(as defined below).
The Trust desires that Deutsche Bank Trust Company Americas perform certain
duties as agent in connection with each Auction of AMPS (in such capacity, the
"Auction Agent"), and as the transfer agent, registrar, dividend paying agent
and redemption agent with respect to the AMPS (in such capacity, the "Paying
Agent"), upon the terms and conditions of this Agreement, and the Trust hereby
appoints Deutsche Bank Trust Company Americas as said Auction Agent and Paying
Agent in accordance with those terms and conditions (hereinafter generally
referred to as the "Auction Agent," except in Sections 3 and 4 below).
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Trust and the Auction Agent agree as follows:
1. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 TERMS DEFINED BY REFERENCE TO THE STATEMENT. Capitalized terms
not defined herein shall have the respective meanings specified in the
Statement.
1.2 TERMS DEFINED HEREIN. As used herein and in the Settlement
Procedures (defined below), the following terms shall have the following
meanings, unless the context otherwise requires:
(a) "Agent Member" of any Person shall mean such Person's agent
member of the Securities Depository that will act on behalf of a Bidder.
(b) "Auction" shall have the meaning specified in Section 2.1
hereof.
(c) "Auction Procedures" shall mean the Auction Procedures that
are set forth in Part II of the Statement.
(d) "Authorized Officer" shall mean each Managing Director, Vice
President, Assistant Vice President and Associate of the Auction Agent and every
other officer or employee of the Auction Agent designated as an "Authorized
Officer" for purposes hereof in a written communication from the Auction Agent
to the Trust.
(e) "Broker-Dealer Agreement" shall mean each agreement between
the Auction Agent and a Broker-Dealer substantially in the form attached hereto
as Exhibit A.
(f) "Holder" shall be a holder of record of one or more AMPS,
listed as such in the share register maintained by the Paying Agent pursuant to
Section 4.6 hereof.
(g) "Settlement Procedures" shall mean the Settlement Procedures
attached as Exhibit B.
(h) "Statement" shall mean the Statement of Preferences of
Auction Market Preferred Shares, as may be amended, supplemented or modified
from time to time.
(i) "Trust Officer" shall mean the Chairman and Chief Executive
Officer, the President, each Vice President (whether or not designated by a
number or word or words added before or after the title "Vice President"), the
Secretary, the Treasurer, each Assistant Secretary and each Assistant Vice
President, each Assistant Treasurer of the Trust and every other officer or
employee of the Trust designated as a "Trust Officer" for purposes hereof in a
notice from the Trust to the Auction Agent.
1.3 RULES OF CONSTRUCTION. Unless the context or use indicates
another or different meaning or intent, the following rules shall
apply to the construction of this Agreement:
(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.
2. THE AUCTION.
2.1 PURPOSE; INCORPORATION BY REFERENCE OF AUCTION PROCEDURES AND
SETTLEMENT PROCEDURES.
(a) The Statement provides that the Applicable Rate on shares of
each series of AMPS for each Dividend Period therefore after the initial
Dividend Period shall generally be the rate per annum that a commercial bank,
trust company or other financial institution appointed by the Trust advises
results from the implementation of the Auction Procedures. The Board of Trustees
of the Trust have adopted a resolution appointing Deutsche Bank Trust Company
Americas as Auction Agent for purposes of the Auction Procedures. The Auction
Agent hereby accepts such appointment and agrees that, on each Auction Date, it
shall follow the procedures set forth in this Section 2 and
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the Auction Procedures for the purpose of determining the Applicable Rate for
the AMPS for the next Dividend Period. 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.
2.2 PREPARATION FOR EACH AUCTION; MAINTENANCE OF REGISTRY OF EXISTING
HOLDERS.
(a) As of the date hereof, the Trust shall provide the Auction
Agent with a list of the Broker-Dealers previously approved by the Auction Agent
and shall cause to be delivered to the Auction Agent for execution by the
Auction Agent a Broker-Dealer Agreement signed by each such Broker-Dealer. The
Auction Agent shall keep such list current and accurate and shall indicate
thereon, or on a separate list, the identity of each Existing Holder, if any,
whose most recent Order was submitted by a Broker-Dealer on such list and
resulted in such Existing Holder continuing to hold or purchase AMPS. Not later
than five Business Days prior to any Auction Date for which any change in such
list of Broker-Dealers is to be effective, the Trust shall notify the Auction
Agent in writing of such change and, if any such change is the addition of a
Broker-Dealer to such list, the Trust shall cause to be delivered to the Auction
Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by
such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer
Agreement with each Broker-Dealer prior to the participation of any such
Broker-Dealer in any Auction.
(b) In the event that the Auction Date for any Auction shall be
changed after the Auction Agent shall have given the notice, the Auction Agent,
by such means as the Auction Agent deems practicable, shall give notice of such
change to the Broker-Dealers not later than the earlier of 9:15 A.M. on the new
Auction Date or 9:15 A.M. on the old Auction Date.
(c) The provisions contained in
(i) Section 2 of Part I of the Statement concerning
dividend rates and calculation of dividends, and
(ii) Section 4 of Part I of the Statement concerning Special
Rate Periods and the notification of a Special Rate Period will be followed by
the Trust and, to the extent applicable, the Auction Agent, and the provisions
contained therein are incorporated herein by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions were set forth fully herein.
(d) (i) On each Auction Date, the Auction Agent shall determine
the Maximum Rate for such series. Not later than 9:30 a.m. on each Auction Date,
the Auction Agent shall notify the Trust and the Broker-Dealers of the Maximum
Applicable Rate.
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(i) If any "AA" Composite Commercial Paper Rate, Taxable
Equivalent of the Short-Term Municipal Bond Rate, Treasury Note Rate or Treasury
Xxxx Rate, as the case may be, is not quoted on an interest or bond equivalent,
as the case may be, basis, the Auction Agent shall convert the quoted rate to
the interest or bond equivalent thereof as set forth in the definition of such
rate in the Statement if the rate obtained by the Auction Agent is quoted on a
discount basis, or if such rate is quoted on a basis other than an interest or
bond equivalent or discount basis the Auction Agent shall convert the quoted
rate to an interest or bond equivalent rate after consultation with the Trust as
to the method of such conversion.
(ii) If any "AA" Composite Commercial Paper Rate is to be
based on rates supplied by Commercial Paper Dealers and one or more of the
Commercial Paper Dealers shall not provide a quotation for the determination of
such "AA" Composite Commercial Paper Rate, the Auction Agent shall immediately
notify the Trust so that the Trust can determine whether to select a Substitute
Commercial Paper Dealer or Substitute Commercial Paper Dealers to provide the
quotation or quotations not being supplied by any Commercial Paper Dealer or
Commercial Paper Dealers. The Trust shall promptly advise the Auction Agent of
any such selection. If the Trust does not select any such Substitute Commercial
Paper Dealer or Substitute Commercial Paper Dealers, then the rates shall be
supplied by the remaining Commercial Paper Dealer or Commercial Paper Dealers.
(iii) If any Treasury Note Rate or Treasury Xxxx Rate is to
be based on rates supplied by U.S. Government Securities Dealers and one or more
of the U.S. Government Securities Dealers shall not provide a quotation for the
determination of such Treasury Rate, the Auction Agent shall immediately notify
the Trust so that the Trust can determine whether to select a Substitute U.S.
Government Securities Dealer or Substitute U.S. Government Securities Dealers to
provide the quotation or quotations not being supplied by any U.S. Government
Securities Dealer or U.S. Government Securities Dealers. The Trust shall
promptly advise the Auction Agent of any such selection. If the Trust does not
select any such Substitute U.S. Government Securities Dealer or Substitute U.S.
Government Securities Dealers, then the rates shall be supplied by the remaining
U.S. Government Securities Dealer or U.S. Government Securities Dealers.
(e) The Auction Agent shall
(i) maintain a registry of the beneficial owners of the
AMPS of each series who shall constitute Existing Holders of AMPS of such series
for purposes of Auctions and shall indicate thereon the identity of the
respective Broker-Dealer of each Existing Holder, if any, on whose behalf such
Broker-Dealer submitted the most recent Order in any Auction which resulted in
such Existing Holder continuing to hold or purchasing AMPS of such series. The
Auction Agent shall keep such registry current and accurate based on the
information provided to it from time to time by the Broker-Dealer. The Trust
shall provide or cause to be provided to the Auction Agent at or prior to the
Date of Original Issue of the AMPS of each series a list of the initial Existing
Holders of the shares of each such series of AMPS, the number of shares
purchased by each such Existing Holder and the respective Broker-Dealer of each
such Existing Holder
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or the affiliate thereof through which each such Existing Holder purchased such
shares. The Auction Agent may rely upon, as conclusive evidence of the
identities of the Existing Holders of AMPS of any series (A) such list, (B) the
results of Auctions, (C) notices from any Broker-Dealer and (D) the results of
any procedures approved by the Trust that have been devised for the purpose of
determining the identities of Existing Holders in situations where AMPS may have
been transferred without compliance with any restriction on the transfer thereof
set forth in the Auction Procedures.
(ii) In the event of any partial redemption of any series of
AMPS, upon notice by the Trust to the Auction Agent of such partial redemption,
the Auction Agent promptly shall request the Securities Depository to notify the
Auction Agent of the identities of the Agent Members (and the respective numbers
of shares) from the accounts of which shares have been called for redemption and
the person or department at such Agent Member to contact regarding such
redemption. At least two Business Days prior to the Auction preceding the date
of redemption, the Auction Agent shall request each Agent Member so identified
to disclose to the Auction Agent (upon selection by such Agent Member of the
Existing Holders whose shares are to be redeemed) the number of AMPS of each
such Existing Holder, if any, to be redeemed by the Trust, provided that the
Auction Agent has been furnished with the name and telephone number of a person
or department at such Agent Member from which it is to request such information.
In the absence of receiving any such information with respect to an Existing
Holder, from such Existing Holder's Agent Member or otherwise, the Auction Agent
may continue to treat such Existing Holder as having ownership of the number of
AMPS shown in the Auction Agent's registry of Existing Holders.
(iii) The Auction Agent shall register a transfer of the
ownership of any series of AMPS from an Existing Holder of such AMPS only if
such transfer is to another Existing Holder, or to other Person if permitted by
the Trust, and only if such transfer is made (A) pursuant to an Auction, (B) the
Auction Agent has been notified in writing (I) in a notice substantially in the
form of Exhibit C to the Broker-Dealer Agreement by a Broker-Dealer of such
transfer or (II) in a notice substantially in the form of Exhibit D to the
Broker-Dealer Agreement by the Broker-Dealer of any Existing Holder, or other
Person if permitted by the Trust, that purchased or sold such AMPS in an Auction
of the failure of such AMPS to be transferred as a result of such Auction or (C)
pursuant to procedures approved by the Fund that have been devised for the
purpose of determining the identities of Existing Holders in situations where
AMPS may have been transferred without compliance with any restriction on the
transfer thereof set forth in the Auction Procedures. 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 on the Business Day preceding such Auction.
(f) The Auction Agent may, but shall have no obligation to,
request the Broker-Dealers, as set forth in the Broker-Dealer Agreement, to
provide the Auction Agent with a list of Persons who such Broker-Dealer believes
should be Existing Holders based upon inquiries of those Persons such
Broker-Dealer believes are Beneficial Owners as a result of the most recent
Auction and with respect to each such Person, the
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number of shares of such series of AMPS such Broker-Dealer believes to be owned
by such Person. The Auction Agent shall keep confidential such registry of
Existing Holders and shall not disclose the identities of the Existing Holders
of such AMPS to any Person other than the Trust and the Broker-Dealer that
provided such information; provided, however, that the Auction Agent reserves
the right and is authorized to disclose any such information if (a) it is
ordered to do so by a court of competent jurisdiction or a regulatory body,
judicial or quasi-judicial agency or authority having the authority to compel
such disclosure, (b) it is advised by its counsel that its failure to do so
would be unlawful or (c) failure to do so would expose the Auction Agent to
loss, liability, claim, damage or expense for which it has not received
indemnity or security satisfactory to it.
2.3 AUCTION SCHEDULE. 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 Trust, which consent shall not be
withheld unreasonably. The Auction Agent shall give notice of any such change to
each Broker-Dealer. Such notice shall be received prior to the first Auction
Date on which any such change shall be effective.
TIME EVENT
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By 9:30 A.M. Auction Agent shall advise the Fund and the
Broker-Dealers of the applicable Maximum Rate and
the Reference Rate(s), the "AA" Composite
Commercial Paper Rate(s), the Taxable Equivalent of
the Short-Term Municipal Rate(s), Treasury Note
Rate(s) and Treasury Xxxx Rate(s), as the case may
be, used in determining such Maximum Rate as set
forth in Section 2.2(d) hereof.
9:30 A.M. - 1:30 P.M. Auction Agent shall assemble information
communicated to it by Broker-Dealers as provided in
Section 4(a) of Part II of the Statement.
Submission deadline is 1:30 P.M.
Notearlier than 1:30 P.M. Auction Agent shall makedeterminations pursuant
to Section 4(a) of Part II of the Statement.
By approximately 3:00 P.M. Auction Agent shall advise the Trust of the results
of the Auction as provided in Section 4(b) of Part
II of the Statement. Submitted Bids and Submitted
Sell Orders will be accepted and rejected in whole
or in part and AMPS will be allocated as provided
in Section 5 of Part II of the
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Statement. Auction Agent shall give notice of the
Auction results as set forth in Section 2.4 hereof.
2.4 NOTICE OF AUCTION RESULTS. On each Auction Date, the Auction
Agent shall notify Broker-Dealers of the results of the Auction held on such
date by telephone or through the Auction Agent's Auction Processing System.
2.5 BROKER-DEALERS.
(a) Not later than 12:00 noon on each Dividend Payment Date for
any series of the Trust's AMPS, the Trust shall pay to the Auction Agent in
Federal Funds or similar same-day funds an amount in cash equal to the aggregate
fees payable to the Broker-Dealers for such series pursuant to Section 3.5 of
the Broker-Dealer Agreements for such series.
(b) The Trust shall not designate any Person to act as a
Broker-Dealer, or permit an Existing Holder or a Potential Beneficial Owner to
participate in Auctions through any Person other than a Broker-Dealer, without
the prior written approval of the Auction Agent, which approval shall not be
withheld unreasonably.
(c) The Auction Agent shall terminate any Broker-Dealer
Agreement as set forth therein if so directed by the Trust.
(d) Subject to Section 2.5(b) hereof, the Auction Agent from
time to time shall enter into such Broker-Dealer Agreements as the Trust shall
request.
(e) The Auction Agent shall maintain a list of Broker-Dealers.
2.6 OWNERSHIP OF AMPS AND SUBMISSION OF BIDS BY THE TRUST AND ITS
AFFILIATES. Neither the Trust nor any Affiliate of the Trust may submit any Sell
Order or Bid, directly or indirectly, in any Auction, except that an Affiliate
of the Trust that is a Broker-Dealer may submit a Sell Order or Bid on behalf of
a Beneficial Owner or a Potential Beneficial Owner. Any shares of AMPS redeemed,
purchased or otherwise acquired (i) by the Trust shall not be reissued, except
in accordance with the requirements of the Securities Act of 1933, as amended,
or (ii) by its Affiliates shall not be transferred (other than to the Trust).
The Auction Agent shall have no duty or liability with respect to enforcement of
this Section 2.6.
2.7 ACCESS TO AND MAINTENANCE OF AUCTION RECORDS. The Auction Agent
shall afford to the Trust, its agents, independent public accountants and
counsel, access at reasonable times during normal business hours to review and
make extracts or copies (at the Trust's sole cost and expense) of all books,
records, documents and other information concerning the conduct and results of
Auctions, provided that any such agent, accountant or counsel shall furnish the
Auction Agent with a letter from the Trust requesting that the Auction Agent
afford such person access. The Auction Agent shall maintain records relating to
any Auction for a period of at least two years after such
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Auction (unless requested by the Trust to maintain such records for such longer
period not in excess of four years, then for such longer period), and such
records, in reasonable detail, shall accurately and fairly reflect the actions
taken by the Auction Agent hereunder. The Trust agrees to keep confidential any
information regarding the customers of any Broker-Dealer received from the
Auction Agent in connection with this Agreement or any Auction, and shall not
disclose such information or permit the disclosure of such information without
the prior written consent of the applicable Broker-Dealer to anyone except such
agent, accountant or counsel engaged to audit or review the results of Auctions
as permitted by this Section 2.7. The Trust reserves the right to disclose any
such information if it is advised by its counsel that its failure to do so would
(i) be unlawful or (ii) expose it to liability, unless the Broker-Dealer shall
have offered indemnification satisfactory to the Trust. Any such agent,
accountant or counsel, before having access to such information, shall agree to
keep such information confidential and not to disclose such information or
permit disclosure of such information without the prior written consent of the
applicable Broker-Dealer, provided that such agent, accountant or counsel may
reserve the right to disclose any such information if it is advised by its
counsel that its failure to do so would (i) be unlawful or (ii) expose it to
liability, unless the Broker-Dealer shall have offered indemnification
satisfactory to such agent, accountant or counsel.
3. THE AUCTION AGENT AS PAYING AGENT.
3.1 THE PAYING AGENT. The Board of Trustees of the Trust has adopted
a resolution appointing Deutsche Bank Trust Company Americas as Auction Agent
and Paying Agent. The Paying Agent hereby accepts such appointment and agrees to
act in accordance with its standard procedures and the provisions of the
Statement which are specified herein with respect to the AMPS and as set forth
in this Section 3.
3.2 THE TRUST'S NOTICES TO THE PAYING AGENT. Whenever any AMPS are to
be redeemed, the Trust promptly shall deliver to the Paying Agent a Notice of
Redemption, which will be mailed by the Paying Agent to each Holder within at
least one Business Day prior to the date such Notice of Redemption is required
to be mailed pursuant to Section 11 of Part I of the Statement. The Paying Agent
shall have no responsibility to confirm or verify the accuracy of any such
Notice.
3.3 THE TRUST TO PROVIDE FUNDS FOR DIVIDENDS AND REDEMPTIONS.
(a) Not later than 12:00 noon on each Dividend Payment Date, the
Trust shall deposit with the Paying Agent an aggregate amount of funds available
on the next Business Day in The City of
New York,
New York equal to the declared
dividends to be paid to Holders on such Dividend Payment Date.
(b) If the Trust shall give a Notice of Redemption, then by noon
on the Business Day next preceding the date fixed for redemption, the Trust
shall deposit in trust with the Paying Agent an aggregate amount of funds
available on the next Business Day in The City of
New York,
New York sufficient
to redeem such shares of Preferred Shares called for redemption and shall give
the Paying Agent irrevocable
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instructions and authority to pay the redemption price to the Holders of AMPS
called for redemption upon surrender of the certificate or certificates
therefore.
3.4 DISBURSING DIVIDENDS AND REDEMPTION PRICE. After receipt of the
funds and instructions from the Trust described in Section 3.3 above, the Paying
Agent shall pay to the Holders (or former Holders) entitled thereto (i) on each
corresponding Dividend Payment Date, dividends on the AMPS, and (ii) on any date
fixed for redemption, the redemption price of any AMPS called for redemption.
The amount of dividends for any Dividend Period to be paid by the Paying Agent
to Holders will be determined by the Trust as set forth in Section 2 of Part I
of the Statement. The redemption price to be paid by the Paying Agent to the
Holders of any Trust called for redemption will be determined as set forth in
Section 11 of Part I of the Statement. The Paying Agent shall have no duty to
determine the redemption price and may rely on the amount thereof set forth in a
Notice of Redemption.
4. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
4.1 ORIGINAL ISSUE OF STOCK CERTIFICATES. On the Date of Original
Issue for any share of AMPS, one certificate for each series of AMPS shall be
issued by the Trust and registered in the name of Cede & Co., as nominee of the
Securities Depository, and countersigned by the Paying Agent.
4.2 REGISTRATION OF TRANSFER OR EXCHANGE OF SHARES. Except as
provided in this Section 4.2, the shares of each series of AMPS shall be
registered solely in the name of the Securities Depository or its nominee. If
the Securities Depository shall give notice of its intention to resign as such,
and if the Trust shall not have selected a substitute Securities Depository
acceptable to the Paying Agent prior to such resignation, then upon such
resignation the shares of each Series of AMPS, at the Trust's request, may be
registered for transfer or exchange, and new certificates thereupon shall be
issued in the name of the designated transferee or transferees, upon surrender
of the old certificate in form deemed by the Paying Agent to be properly
endorsed for transfer with (a) all necessary endorsers' signatures guaranteed in
such manner and form and by such guarantor as the Paying Agent may reasonably
require, (b) such assurances as the Paying Agent shall deem necessary or
appropriate to evidence the genuineness and effectiveness of each necessary
endorsement and (c) satisfactory evidence of compliance with all applicable laws
relating to the collection of taxes in connection with any registration of
transfer or exchange or funds necessary for the payment of such taxes. If the
certificate or certificates for AMPS are not held by the Securities Depository
or its nominee, payments upon transfer of shares in an Auction shall be made in
Federal Funds or similar same-day funds to the Auction Agent against delivery of
certificates therefore.
4.3 REMOVAL OF LEGEND. Any request for removal of a legend indicating
a restriction on transfer from a certificate evidencing AMPS shall be
accompanied by an opinion of counsel stating that such legend may be removed and
such shares may be transferred free of the restriction described in such legend,
said opinion to be delivered under cover of a letter from a Trust Officer
authorizing the Paying Agent to remove the legend on the basis of said opinion.
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4.4 LOST, STOLEN OR DESTROYED STOCK CERTIFICATES. The Paying Agent
shall issue and register replacement certificates for certificates represented
to have been lost, stolen or destroyed, upon the fulfillment of such
requirements as shall be deemed appropriate by the Trust and by the Paying
Agent, subject at all times to provisions of law, the Statement governing such
matters and resolutions adopted by the Trust with respect to lost, stolen or
destroyed securities. The Paying Agent may issue new certificates in exchange
for and upon the cancellation of mutilated certificates. Any request by the
Trust to the Paying Agent to issue a replacement or new certificate pursuant to
this Section 4.4 shall be deemed to be a representation and warranty by the
Trust to the Paying Agent that such issuance will comply with provisions of
applicable law and the Statement and resolutions of the Trust.
4.5 DISPOSITION OF CANCELED CERTIFICATES; RECORD RETENTION. The
Paying Agent shall retain stock certificates which have been canceled in
transfer or in exchange and accompanying documentation in accordance with
applicable rules and regulations of the Securities and Exchange Commission (the
"SEC") for at least two calendar years from the date of such cancellation. The
Paying Agent, upon written request by the Trust, shall afford to the Trust, its
agents and counsel access at reasonable times during normal business hours to
review and make extracts or copies (at the Trust's sole cost and expense) of
such certificates and accompanying documentation. Upon request by the Trust at
any time after the expiration of this two-year period, the Paying Agent shall
deliver to the Trust the canceled certificates and accompanying documentation.
The Trust, at its expense, shall retain such records for a minimum additional
period of at least four calendar years from the date of delivery of the records
to the Trust and shall make such records available during this period at any
time, or from time to time, for reasonable periodic, special, or other
examinations by representatives of the SEC. The Trust also shall undertake to
furnish to the SEC, upon demand, either at its principal office or at any
regional office, complete, correct and current hard copies of any and all such
records.
4.6 SHARE REGISTER. The Paying Agent shall maintain the share
register, which shall contain a list of the Holders, the number of shares held
by each Holder and the address of each Holder. The Paying Agent shall record in
the share register any change of address of a Holder upon notice by such Holder.
In case of any written request or demand for the inspection of the share
register or any other books of the Trust in the possession of the Paying Agent,
the Paying Agent will notify the Trust and secure instructions as to permitting
or refusing such inspection. The Paying Agent reserves the right, however, to
exhibit the share register or other records to any person in case it is advised
by its counsel that its failure to do so would (i) be unlawful or (ii) expose it
to liability, unless the Trust shall have offered indemnification satisfactory
to the Paying Agent.
4.7 RETURN OF FUNDS. Any funds deposited with the Paying Agent by the
Trust for any reason under this Agreement, including for the payment of
dividends or the redemption of AMPS, that remain with the Paying Agent after 12
months shall be repaid to the Trust upon written request by the Trust. The Trust
shall be entitled to receive from the Auction Agent, promptly after the date
fixed for redemption, any cash
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deposited with the Auction Agent in excess of:
(a) the aggregate Redemption Price of the AMPS called for
redemption on such date and
(b) all other amounts to which Holders of AMPS called for
redemption may be entitled.
Any funds so deposited that are unclaimed at the end of 90 days
from such redemption date shall, to the extent permitted by law, be repaid to
the Trust.
5. REPRESENTATIONS AND WARRANTIES.
5.1 REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust represents
and warrants to the Auction Agent that:
(i) the Trust is a duly organized and existing business trust in
good standing under the laws of the State of its incorporation or organization,
and has full corporate power to execute and deliver this Agreement and to
authorize, create and issue the AMPS;
(ii) this Agreement has been duly and validly authorized,
executed and delivered by the Trust and constitutes the legal, valid and binding
obligation of the Trust, enforceable against the Trust in accordance with its
terms, subject as to such enforceability to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equitable principles;
(iii) the form of the certificates evidencing the AMPS comply
with all applicable laws of the State of Delaware;
(iv) the AMPS has been duly and validly authorized by the Trust
and, upon completion of the initial sale of the series of AMPS and receipt of
payment therefor, will be validly issued by the Trust, fully paid and
nonassessable;
(v) when issued, the shares of AMPS will have been duly
registered under the Securities Act of 1933, as amended, and no further action
by or before any governmental body or authority of the United States or of any
state thereof is required in connection with the execution and delivery of this
Agreement or will be required in connection with the issuance of the AMPS;
(vi) the execution and delivery of this Agreement and the
issuance and delivery of the AMPS do not and will not conflict with, violate, or
result in a breach of the terms, conditions or provisions of, or constitute a
default under, the Agreement and Declaration of the Trust or the By-Laws of the
Trust, any order or decree of any court or public authority having jurisdiction
over the Trust, or any mortgage, indenture, contract, agreement or undertaking
to which the Trust is a party or by which it is bound; and
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(vii) no taxes are payable upon or in respect of the execution of
this Agreement or will be payable upon or in respect of the issuance of the
AMPS.
5.2 REPRESENTATIONS AND WARRANTIES OF THE AUCTION AGENT. The Auction
Agent represents and warrants to the Trust that:
(i) the Auction Agent is duly organized and is validly existing
as a banking corporation in good standing under the laws of the State of
New
York, and has the corporate power to enter into and perform its obligations
under this Agreement; and
(ii) this Agreement has been duly and validly authorized,
executed and delivered by the Auction Agent and constitutes the legal, valid and
binding obligation of the Auction Agent, enforceable against the Auction Agent
in accordance with its terms, subject as to such enforceability to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equitable principles.
6. THE AUCTION AGENT.
6.1 DUTIES AND RESPONSIBILITIES.
(a) The Auction Agent is acting solely as agent for the Trust
hereunder and owes no fiduciary duties to any Person except as provided by this
Agreement.
(b) The Auction Agent undertakes to perform such duties and only
such duties as are set forth specifically 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.
6.2 RIGHTS OF THE AUCTION AGENT.
(a) The Auction Agent may rely upon, and shall be fully
protected in acting or refraining from acting upon, any communication authorized
hereby and any written instruction, notice, request, direction, consent, report,
certificate, share certificate or other instrument, paper or document reasonably
believed by it to be genuine. The Auction Agent shall not be liable for acting
upon any telephone communication authorized hereby which the Auction Agent
reasonably believes in good faith to have been given by the Trust or by a
Broker-Dealer. The Auction Agent may record telephone communications with the
Trust or with the Broker-Dealers or with both.
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(b) The Auction Agent may consult with counsel of its choice,
and the written 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 reasonable 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. The Auction Agent shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Trust.
(d) The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys.
6.3 COMPENSATION, EXPENSES AND INDEMNIFICATION.
(a) The Trust shall pay to the Auction Agent from time to time
reasonable compensation for all services rendered by it under this Agreement and
under the Broker-Dealer Agreements as shall be set forth in a separate writing
signed by the Trust and the Auction Agent, subject to adjustments if the AMPS no
longer are held of record by the Securities Depository or its nominee or if
there shall be such other change as shall increase or decrease materially the
Auction Agent's obligations hereunder or under the Broker-Dealer Agreements.
(b) The Trust shall reimburse the Auction Agent upon its request
for all reasonable expenses, disbursements and advances incurred or made by the
Auction Agent in accordance with any provision of this Agreement and of the
Broker-Dealer Agreements (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any expense, disbursement or
advance attributable to its negligence or bad faith.
(c) The Trust shall indemnify the Auction Agent for, and hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Auction Agent arising out of or in connection with
its agency under this Agreement and under the Broker-Dealer Agreements,
including the costs and expenses of defending itself against any claim of
liability in connection with its exercise or performance of any of its duties
hereunder and thereunder, except such as may result from its negligence or bad
faith.
7. MISCELLANEOUS.
7.1 TERM OF AGREEMENT.
(a) The term of this Agreement is unlimited unless it shall be
terminated as provided in this Section 7.1. The Trust may terminate this
Agreement at any time by so notifying the Auction Agent, provided that, if any
AMPS remain outstanding, the Trust shall have entered into an agreement with a
successor auction agent. The Auction Agent may terminate this Agreement upon
prior notice to the Trust
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on the date specified in such notice, which date shall be no earlier than 60
days after delivery of such notice. If the Auction Agent terminates this
Agreement while any AMPS of a series remains outstanding, the Trust shall use
its best efforts to enter into an agreement with a successor auction agent
containing substantially the same terms and conditions as this Agreement.
(b) Except as otherwise provided in this Section 7.1(b), the
respective rights and duties of the Trust and the Auction Agent under this
Agreement with respect to AMPS shall cease upon termination of this Agreement.
The Trust's representations, warranties, covenants and obligations to the
Auction Agent under Sections 5 and 6.3 hereof shall survive the termination of
the Agreement. Upon termination of this Agreement, the Auction Agent shall (i)
resign as Auction Agent under the Broker-Dealer Agreements, (ii) at the Trust's
request, deliver promptly to the Trust copies of all books and records
maintained by it in connection with its duties hereunder, and (iii) at the
request of the Trust, transfer promptly to the Trust or to any successor auction
agent any funds deposited by the Trust with the Auction Agent (whether in its
capacity as Auction Agent or as Paying Agent) pursuant to this Agreement which
have not been distributed previously by the Auction Agent in accordance with
this Agreement.
7.2 COMMUNICATIONS. 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 any party
hereunder shall be in writing (including telecopy or similar writing) and shall
be given to such party at its address or telecopier number set forth below:
If to the Trust,
BlackRock New York Municipal Income Trust II
addressed to: c/o Black Rock Financial Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Treasurer
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Auction Agent, Deutsche Bank Trust Company Americas
addressed to: c/o DB Services N.J., Inc.
000 Xxxxx Xxx, 0xx Xxxxx
Xxxxxx Xxxx, XX, 00000
Attention: Xxxx Xxxx-XxXxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (212) 593-644
or such other address or telecopier number as such party hereafter may 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
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on behalf of the Trust by a Trust Officer and on behalf of the Auction Agent by
an Authorized Officer.
7.3 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof, and there are no
other representations, endorsements, promises, agreements or understandings,
oral, written or implied, between the parties relating to the subject matter
hereof, except for agreements relating to the compensation of the Auction Agent.
7.4 BENEFITS. Nothing herein, express or implied, shall give to any
Person, other than the Trust, the Auction Agent and their respective successors
and assigns, any benefit of any legal or equitable right, remedy or claim
hereunder.
7.5 AMENDMENT; WAIVER.
(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 signed by a duly authorized representative of the party to
be charged.
(b) Failure of either party hereto to exercise any right or
remedy hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
7.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon,
inure to the benefit of, and be enforceable by, the respective successors and
permitted assigns of each of the Trust and the Auction Agent. This Agreement may
not be assigned by either party hereto absent the prior written consent of the
other party, which consent shall not be withheld unreasonably.
7.7 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.
7.8 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.
7.9 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
BLACKROCK NEW YORK MUNICIPAL
INCOME TRUST II
------------------------------------
By:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS
------------------------------------
By:
Title:
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EXHIBIT A
[Broker Dealer Agreement]
17
EXHIBIT B
[Settlement Procedures]
18
