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EXHIBIT (k)(1)
AUCTION AGENT AGREEMENT
between
XXXXX XXXXX PENNSYLVANIA MUNICIPAL INCOME TRUST
and
BANKERS TRUST COMPANY
Dated as of March 4, 1999
Relating to
AUCTION PREFERRED SHARES
of
XXXXX XXXXX PENNSYLVANIA MUNICIPAL INCOME TRUST
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TABLE OF CONTENTS
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I. DEFINITIONS AND RULES OF CONSTRUCTION...................................................... 1
1.1 Terms Defined by Reference to the Amended By-laws............................ 1
1.2 Terms Defined Herein......................................................... 1
1.3 Rules of Construction........................................................ 3
II. THE AUCTION............................................................................... 3
2.1 Purpose; Incorporation by Reference of Auction Procedures
and Settlement Procedures.................................................... 3
2.2 Preparation for Each Auction; Maintenance of Registry of
Existing Holders............................................................. 4
2.3 Auction Schedule............................................................. 8
2.4 Notice of Auction Results.................................................... 9
2.5 Broker-Dealers............................................................... 9
2.6 Ownership of Shares of APS and Submission of Bids by
the Trust and its Affiliates................................................. 10
2.7 Access to and Maintenance of Auction Records................................. 10
III. THE AUCTION AGENT AS PAYING AGENT........................................................ 11
3.1 The Paying Agent............................................................. 11
3.2 The Trust's Notices to the Paying Agent...................................... 11
3.3 The Trust to Provide Funds for Dividends, Redemptions
and Additional Dividends. ................................................ 12
3.4 Disbursing Dividends, Redemption Price and Additional
Dividends.................................................................... 12
IV. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.......................................... 13
4.1 Original Issue of Stock Certificates......................................... 13
4.2 Registration of Transfer or Exchange of Shares............................... 13
4.3 Removal of Legend............................................................ 14
4.4 Lost, Stolen or Destroyed Stock Certificates................................. 14
4.5 Disposition of Canceled Certificates; Record Retention....................... 14
4.6 Stock Register............................................................... 15
4.7 Return of Funds.............................................................. 15
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V. REPRESENTATIONS AND WARRANTIES............................................................. 16
5.1 Representations and Warranties of the Trust.................................. 16
5.2 Representations and Warranties of the Auction Agent.......................... 17
VI. THE AUCTION AGENT......................................................................... 17
6.1 Duties and Responsibilities.................................................. 17
6.2 Rights of the Auction Agent.................................................. 18
6.3 Auction Agent's Disclaimer................................................... 18
6.4 Compensation, Expenses and Indemnification................................... 18
VII. MISCELLANEOUS............................................................................ 19
7.1 Term of Agreement............................................................ 19
7.2 Communications............................................................... 20
7.3 Entire Agreement............................................................. 21
7.4 Benefits..................................................................... 21
7.5 Amendment; Waiver............................................................ 21
7.6 Successors and Assigns....................................................... 21
7.7 Severability................................................................. 22
7.8 Execution in Counterparts.................................................... 22
7.9 Governing Law................................................................ 22
7.10 Limitation of Liability...................................................... 22
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THIS AUCTION AGENT AGREEMENT, dated as of March 4, 1999, is
between XXXXX XXXXX PENNSYLVANIA MUNICIPAL INCOME TRUST, a Massachusetts
business trust (the "Trust"), and BANKERS TRUST COMPANY, a New York banking
corporation.
The Trust proposes to issue 900 preferred shares of
beneficial interest, par value $.01 per share, liquidation preference $25,000
per share (the "APS"), pursuant to the Trust's Amended By-laws (as defined
below). The Trust desires that Bankers Trust Company perform certain duties as
agent in connection with each Auction of shares of APS (in such capacity, the
"Auction Agent"), and as the transfer agent, registrar, dividend disbursing
agent and redemption agent with respect to the shares of APS (in such capacity,
the "Paying Agent"), upon the terms and conditions of this Agreement, and the
Trust hereby appoints Bankers Trust Company 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:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined by Reference to
the Amended By-laws.
Capitalized terms not defined herein shall have the respective meanings
specified in the Amended By-laws.
1.2 Terms Defined Herein.
As used herein and in the Settlement Procedures (as defined below), the
following terms shall have the following meanings, unless the context otherwise
requires:
(a) "Affiliate" shall mean any Person made known to the Auction Agent
to be controlled by, in control of, or under common control with, the Trust or
its successors.
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(b) "Agent Member" of any Person shall mean such Person's agent member
of the Securities Depository that will act on behalf of a Bidder.
(c) "Amended By-laws" shall mean the Amended By-laws of the Trust,
establishing the powers, preferences and rights of the APS, as amended to the
date hereof.
(d) "Auction" shall have the meaning specified in Section 2.1 hereof.
(e) "Auction Procedures" shall mean the Auction Procedures that are set
forth in Section 10 of Article VII of the Amended By-laws.
(f) "Authorized Officer" shall mean each Senior Vice President, Vice
President, Assistant Vice President, Trust Officer, and Assistant Secretary and
Assistant Treasurer of the Auction Agent and every other officer or employee of
the Auction Agent designated as an "Authorized Officer" for purposes hereof in a
communication to the Trust.
(g) "Broker-Dealer Agreement" shall mean each agreement between the
Auction Agent and a Broker-Dealer substantially in the form attached hereto as
Exhibit A.
(h) "Holder" shall be a holder of record of one or more shares of APS,
listed as such in the stock register maintained by the Paying Agent pursuant to
Section 4.6 hereof.
(i) "Settlement Procedures" shall mean the Settlement Procedures
attached as Exhibit A to the Broker-Dealer Agreement.
(j) "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 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.
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Unless the context or use indicates another or different meaning or
intent, the following rules shall apply to the construction of this Agreement:
(a) Words importing the singular number shall include the plural number
and vice versa.
(b) The captions and headings herein are solely for convenience of
reference and shall not constitute a part of this Agreement nor shall they
affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto," and other words of similar
import refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to New
York City time.
II. THE AUCTION.
2.1 Purpose; Incorporation by Reference of Auction
Procedures and Settlement Procedures.
(a) The Amended By-laws provide that the Applicable Rate on shares of
each series of APS, as the case may be, for each Dividend Period therefor after
the Initial Dividend Period shall be the rate per annum that a commercial bank,
trust company or other financial institution appointed by the Trust advises
results from implementation of the Auction Procedures. The Board of Trustees of
the Trust has adopted a resolution appointing Bankers Trust Company 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 the Auction Procedures for the
purpose of determining the Applicable Rate for the APS for the next Dividend
Period therefor. Each periodic operation of such procedures is hereinafter
referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures and in
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.
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2.2 Preparation for Each Auction; Maintenance
of Registry of Existing Holders.
(a) Pursuant to Section 2.5 hereof, the Trust shall not designate any
Person to act as a Broker-Dealer without the prior written approval of the
Auction Agent (which approval shall not be withheld unreasonably). 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 purchasing shares of APS. 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 referred to in clause (vii)
of Paragraph (a) of the Settlement Procedures, 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 Section 2 of Article VII of the Amended
By-laws concerning Special Dividend Periods and the notification of a Special
Dividend 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) Except as otherwise provided in Sections 2(e) and 2(f) of
Article VII of the Amended By-laws, whenever the Trust intends to include any
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net capital gains or other income subject to regular Federal income tax in any
dividend on shares of APS, the Trust will notify the Auction Agent of the amount
to be so included at least five Business Days prior to the Auction Date on which
the Applicable Rate for such dividend is to be established. Whenever the Auction
Agent receives such notice from the Trust, in turn it will notify each
Broker-Dealer, who, on or prior to such Auction Date, in accordance with its
Broker-Dealer Agreement, will notify its Beneficial Owners and Potential
Beneficial Owners believed to be interested in submitting an Order in the
Auction to be held on such Auction Date. Whenever the Trust includes any
additional amounts in a dividend as provided in Section 2(e) of Article VII of
the Amended By-laws, the Trust will notify the Auction Agent of such additional
amounts to be so included in such dividend at least five Business Days prior to
the applicable Dividend Payment Date. Whenever the Auction Agent receives such
notice from the Trust, in turn it will notify the Securities Depository and each
Broker-Dealer, who, on or prior to the applicable Dividend Payment Date, in
accordance with its Broker-Dealer Agreement, will notify its Beneficial Owners.
(ii) If the Trust makes a Retroactive Taxable Allocation, the
Trust, within 90 days (and generally within 60 days) after the end of its fiscal
year for which a Retroactive Taxable Allocation is made, will provide notice
thereof to the Auction Agent and to each Holder (initially the Securities
Depository) during such fiscal year at such Holder's address as the same appears
or last appeared on the stock books of the Trust. The Trust, within 30 days
after such notice is given to the Auction Agent, will pay to the Auction Agent
(who then will distribute to such Holders), out of funds legally available
therefor, a cash amount equal to the aggregate Additional Dividend with respect
to all Retroactive Taxable Allocations made to such Holders during the fiscal
year in question.
(e) (i) On each Auction Date, the Auction Agent shall determine the
Reference Rate and the Maximum Applicable Rate. If the Reference Rate is not
quoted on an interest basis but is quoted on a discount basis, the Auction Agent
shall convert the quoted rate to an Interest Equivalent, as set forth in Section
1 of the Amended By-laws; or, if the rate obtained by the Auction Agent is not
quoted on an interest or discount basis, the Auction Agent shall convert the
quoted rate to an interest rate after consultation with the Trust as to the
method of such conversion. Not later than 9:30 A.M. on each Auction Date, the
Auction Agent shall notify the Trust and the Broker-Dealers of the Reference
Rate so determined and of the Maximum Applicable Rate.
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(ii) If the Reference Rate is the applicable "AA" Composite
Commercial Paper Rate and such 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 the applicable "AA" Composite
Commercial Paper Rate, the Auction Agent immediately shall 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 promptly shall 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, after the date of this Agreement, there is any
change in the prevailing rating of APS by Standard & Poor's Ratings Group (or
substitute or successor rating agencies), thereby resulting in any change in the
corresponding applicable percentage for the APS, as set forth in the definition
of Maximum Application Rate (the "Percentage"), the Trust shall notify the
Auction Agent in writing of such change in the Percentage prior to 9:00 A.M. on
the Auction Date for APS next succeeding such change. The Percentage for the APS
on the date of this Agreement is 110%. The Auction Agent shall be entitled to
rely on the last Percentage of which it has received notice from the Trust (or,
in the absence of such notice, the Percentage set forth in the preceding
sentence) in determining the Maximum Applicable Rate as set forth in Section
2.2(e)(i) hereof.
(f) (i) The Auction Agent shall maintain a current registry of the
Existing Holders of the shares of APS for purposes of each Auction. The Trust
shall use its best efforts to provide or cause to be provided to the Auction
Agent within ten Business Days following the date of the Closing a list of the
initial Existing Holders of APS, and the Broker-Dealer of each such Existing
Holder through which such Existing Holder purchased such shares. The Auction
Agent may rely upon, as evidence of the identities of the Existing Holders, such
list, the results of each Auction and notices from any Existing Holder, the
Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder
with respect to such Existing Holder's transfer of any shares of APS to another
Person.
(ii) In the event of any partial redemption of APS, upon
notice by the Trust to the Auction Agent of such partial redemption, the Auction
Agent
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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, and 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 shares of APS 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
shares of APS shown in the Auction Agent's registry of Existing Holders.
(iii) The Auction Agent shall register a transfer of the
ownership of shares of APS from an Existing Holder to another Existing Holder,
or to another Person if permitted by the Trust, only if (A) such transfer is
made pursuant to an Auction or (B) if such transfer is made other than pursuant
to an Auction, the Auction Agent has been notified of such transfer in writing
in a notice substantially in the form of Exhibit C to the Broker-Dealer
Agreements, by such Existing Holder or by the Agent Member of such Existing
Holder. The Auction Agent is not required to accept any notice of transfer
delivered for an Auction unless it is received by the Auction Agent by 3:00 P.M.
on the Business Day next preceding the applicable Auction Date. The Auction
Agent shall rescind a transfer made on the registry of the Existing Holders of
any shares of APS if the Auction Agent has been notified in writing, in a notice
substantially in the form of Exhibit D to the Broker-Dealer Agreement, by the
Agent Member or the Broker-Dealer of any Person that (i) purchased any shares of
APS and the seller failed to deliver such shares or (ii) sold any shares of APS
and the purchaser failed to make payment to such Person upon delivery to the
purchaser of such shares.
(g) The Auction Agent may request that the Broker Dealers, as set forth
in Section 3.2(c) of the Broker-Dealer Agreements, provide the Auction Agent
with a list of their respective customers that such Broker-Dealers believe are
Beneficial Owners of shares of APS. The Auction Agent shall keep confidential
any such information and shall not disclose any such information so
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provided to any Person other than the relevant Broker-Dealer and the Trust,
provided that the Auction Agent reserves the right to disclose any such
information if it is advised by its counsel that its failure to do so would be
unlawful.
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 advises the Trust and the Broker-
Dealers of the Reference Rate and the Maximum
Applicable Rate as set forth in Section 2.2(e)(i)
hereof.
9:30 A.M. - 1:00 P.M. Auction Agent assembles information communicated to
it by Broker-Dealers as provided in Section 10(d)(i) of
Article VII of the Amended By-laws. Submission
deadline is 1:00 P.M.
Not earlier than Auction Agent makes determinations pursuant to
1:00 P.M. Section 10(d)(i) of Article VII of the Amended By-
laws.
By approximately Auction Agent advises the Trust of the results of the
3:00 P.M. Auction as provided in Section 10(d)(ii) of Article VII
of the Amended By-laws.
Submitted Bids and Submitted Sell Orders are
accepted and rejected in whole or in part and
shares of APS allocated as provided in Section
10(e) of Article VII of the Amended By-laws.
Auction Agent gives notice of the Auction results
as set forth in Section 2.4 hereof.
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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 as set forth in Paragraph (a) of the
Settlement Procedures.
2.5 Broker-Dealers.
(a) Not later than 12:00 noon on each Auction Date, the Trust shall pay
to the Auction Agent in Federal Funds or similar same-day funds an amount in
cash equal to (i) in the case of any Auction Date immediately preceding a 7-Day
Dividend Period, the product of (A) a fraction the numerator of which is the
number of days in such Dividend Period (calculated by counting the first day of
such Dividend Period but excluding the last day thereof) and the denominator of
which is 360, times (B) 1/4 of 1%, times (C) $25,000 times (D) the sum of the
aggregate number of outstanding shares of APS for which the Auction is conducted
and (ii) in the case of any Special Dividend Period, the amount determined by
mutual consent of the Trust and the Broker-Dealers pursuant to Section 3.5 of
the Broker-Dealer Agreements. The Auction Agent shall apply such moneys as set
forth in Section 3.5 of the Broker-Dealer Agreements and shall thereafter remit
to the Trust any remaining funds paid to the Auction Agent pursuant to this
Section 2.5(a).
(b) The Trust shall not designate any Person to act as a Broker-
Dealer, or permit a 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. The Trust may designate an Affiliate or PaineWebber
Incorporated to act as a Broker-Dealer.
(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.
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2.6 Ownership of Shares of APS 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. The Trust shall notify the
Auction Agent if the Trust or, to the best of the Trust's knowledge, any
Affiliate of the Trust becomes a Beneficial Owner of any shares of APS. Any
shares of APS 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 two years after such
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, provided that 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
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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.
III. THE AUCTION AGENT AS PAYING AGENT.
3.1 The Paying Agent.
The Board of Trustees of the Trust has adopted a resolution appointing
Bankers Trust Company as transfer agent, registrar, dividend disbursing agent
and redemption agent for the Trust in connection with any shares of APS (in such
capacity, the "Paying Agent"). The Paying Agent hereby accepts such appointment
and agrees to act in accordance with its standard procedures and the provisions
of the Amended By-laws which are specified herein with respect to the shares of
APS and as set forth in this Section 3.
3.2 The Trust's Notices to the Paying Agent.
Whenever any shares of APS are to be redeemed, the Trust promptly shall
deliver to the Paying Agent a Notice of Redemption, which will be mailed by the
Trust to each Holder at least five Business Days prior to the date such Notice
of Redemption is required to be mailed pursuant to the Amended By-laws. 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,
Redemptions and Additional Dividends.
(a) Not later than noon on each Dividend Payment Date, the Trust shall
deposit with the Paying Agent an aggregate amount of Federal Funds or similar
same-day funds equal to the declared dividends to be paid to Holders on such
Dividend Payment Date, and shall give the Paying Agent irrevocable instructions
to apply such funds to the payment of such dividends on such Dividend Payment
Date.
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(b) If the Trust shall give a Notice of Redemption, then by noon of the
date fixed for redemption, the Trust shall deposit in trust with the Paying
Agent an aggregate amount of Federal Funds or similar same-day funds sufficient
to redeem such shares of APS called for redemption and shall give the Paying
Agent irrevocable instructions and authority to pay the redemption price to the
Holders of shares of APS called for redemption upon surrender of the certificate
or certificates therefor.
(c) If the Trust provides notice to the Auction Agent of a Retroactive
Taxable Allocation, the Trust, within 30 days after such notice is given and by
noon of the date fixed for payment of an Additional Dividend, shall deposit in
trust with the Paying Agent an aggregate amount of Federal Funds or similar
same-day funds equal to such Additional Dividend and shall give the Paying Agent
irrevocable instructions and authority to pay the Additional Dividend to Holders
(or former Holders) entitled thereto.
3.4 Disbursing Dividends, Redemption Price
and Additional Dividends.
After receipt of the Federal Funds or similar same-day funds and
instructions from the Trust described in Sections 3.3(a), (b) and (c) above, the
Paying Agent shall pay to the Holders (or former Holders) entitled thereto (i)
on each corresponding Dividend Payment Date, dividends on the shares of APS,
(ii) on any date fixed for redemption, the redemption price of any shares of APS
called for redemption and (iii) on the date fixed for payment of an Additional
Dividend, such Additional Dividend. 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 the Amended By-laws. The redemption price to be
paid by the Paying Agent to the Holders of any shares of APS called for
redemption will be determined as set forth in Section 4 of the Amended By-laws.
The amount of Additional Dividends to be paid by the Paying Agent in the event
of a Retroactive Taxable Allocation to Holders will be determined by the Trust
pursuant to Section 2(e) of the Amended By-laws. The Trust shall notify the
Paying Agent in writing of a decision to redeem any shares of APS on or prior to
the date specified in Section 3.2 above, and such notice by the Trust to the
Paying Agent shall contain the information required to be stated in a Notice of
Redemption required to be mailed by the Trust to such Holders. 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.
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IV. 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 APS, one certificate for
each series, if any, of APS 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. The Trust will give the Auction Agent prior written notice
and instruction as to the issuance and redemption of APS.
4.2 Registration of Transfer or Exchange of Shares.
Except as provided in this Section 4.2, the shares of each series of
APS, if any, 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 APS, if any, 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 properly endorsed for transfer with (a) all necessary endorsers'
signatures guaranteed in such manner and form as the Paying Agent may require by
a guarantor reasonably believed by the Paying Agent to be responsible, (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 shares of APS 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 therefor.
4.3 Removal of Legend.
Any request for removal of a legend indicating a restriction on
transfer from a certificate evidencing shares of APS 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
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delivered under cover of a letter from a Company Officer authorizing the Paying
Agent to remove the legend on the basis of said opinion.
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 Amended
By-Laws of the Trust 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 By-Laws 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
for 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 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 Securities and Exchange Commission. The Trust also shall
undertake to furnish to the Securities and Exchange Commission, upon demand,
either at their principal office or at any regional office, complete, correct
and current hard copies of any and all such records. Thereafter, such records
shall not be destroyed by the Trust without the
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approval of the Paying Agent, which approval shall not be withheld unreasonably,
but will be safely stored for possible future reference.
4.6 Stock Register.
The Paying Agent shall maintain the stock 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 stock 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 stock 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 stock 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 APS, that remain with the Paying Agent after 12 months shall be repaid to the
Trust upon written request by the Trust.
V. 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 duly organized and is validly existing as a
business trust in good standing under the laws of The Commonwealth of
Massachusetts, and has full power to execute and deliver this Agreement and to
authorize, create and issue the shares of APS;
(ii) the Trust is registered with the Securities and Exchange
Commission under the Investment Company Act of 1940, as amended, as a
closed-end, non-diversified, management investment company;
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(iii) 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;
(iv) the forms of the certificates evidencing the shares of
APS comply with all applicable laws of The Commonwealth of Massachusetts;
(v) the shares of APS have been duly and validly authorized by
the Trust and, upon completion of the initial sale of the shares of APS and
receipt of payment therefor, will be validly issued, fully paid and
nonassessable;
(vi) at the time of the offering of the shares of APS, the
shares offered will be 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 shares of APS, except such action as required by applicable
state securities laws, all of which action will have been taken;
(vii) the execution and delivery of this Agreement and the
issuance and delivery of the shares of APS 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 Declaration of Trust or the Amended By-Laws of
the Trust, any law or regulation applicable to 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
(viii) 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 shares of APS.
5.2 Representations and Warranties of the Auction Agent.
The Auction Agent represents and warrants to the Trust that the Auction
Agent is duly organized and is validly existing as a banking corporation in good
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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.
VI. 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. The Auction Agent shall not be liable for any error of judgment made
in good faith unless the Auction Agent shall have been negligent in ascertaining
(or failing to ascertain) the pertinent facts.
6.2 Rights of the Auction Agent.
(a) The Auction Agent may rely upon, and shall be 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 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.
(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 reliance thereon.
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(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 Auction Agent's Disclaimer.
The Auction Agent makes no representation as to the validity or the
adequacy of this Agreement, the Broker-Dealer Agreements or the APS.
6.4 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 APS no
longer are held of record by the Securities Depository or its nominee or if
there shall be such other change as shall increase 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 its part 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.
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VII. 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
APS remain outstanding the Trust shall have entered into an agreement in
substantially the form of this Agreement with a successor auction agent. The
Auction Agent may terminate this Agreement upon prior notice to the Trust 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 resigns while any shares of APS
remain 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 shall
cease upon termination of this Agreement. The Trust's representations,
warranties, covenants and obligations to the Auction Agent under Sections 5 and
6.4 hereof shall survive the termination hereof. 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:
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If to the Trust, Xxxxx Xxxxx Pennsylvania Municipal Income Trust
addressed to: 00 Xxxxxxx Xxxxxx [before May 1, 1999]
Xxxxxx, XX 00000
000 Xxxxx Xxxxxx [after May 1, 1999]
Xxxxxx, XX 00000
Attention: Treasurer
Telephone No.: (000) 000-0000
If to the Auction Agent, Bankers Trust Company
addressed to: Corporate Trust and Agency Group
Four Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Auction Rate Securities
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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 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 inferred,
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,
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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. The Trust shall notify the Auction Agent of any change in the Amended
By-laws prior to the effective date of any such change. If any such change in
the Amended By-laws materially increases the Auction Agent's obligations
hereunder, the Trust shall obtain the written consent to the Auction Agent prior
to the effective date of such change.
(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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7.10 Limitation of Liability.
The names "Xxxxx Xxxxx Pennsylvania Municipal Income Trust" and
"Trustees of the Xxxxx Xxxxx Pennsylvania Municipal Income Trust" refer,
respectively, to the Trust and the Trustees of the Trust, as trustees but not
individually or personally, acting from time to time under the Trust's Agreement
and Declaration of Trust dated December 10, 1998, as amended, which is hereby
referred to and a copy of which is on file at the office of the Secretary of The
Commonwealth of Massachusetts and the principal office of the Trust. The
obligations of "Xxxxx Xxxxx Pennsylvania Municipal Income Trust" entered into in
the name or on behalf thereof by any of the Trustees, representatives or agents
of the Trust are made not individually, but in such capacities, and are not
binding upon any of the Trustees, officers, holders of shares of beneficial
interest of the Trust or representatives of the Trustees personally, but bind
only the Trust assets, and all persons dealing with the Trust must look solely
to the Trust property for the enforcement of any claims against the Trust.
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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.
XXXXX XXXXX PENNSYLVANIA
MUNICIPAL INCOME TRUST
By:_____________________________________
Title:
BANKERS TRUST COMPANY
By:_____________________________________
Title:
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