EXHIBIT 99.2K3
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ZENIX INCOME FUND INC.
BANKERS TRUST COMPANY,
as Auction Agent
______________________
BROKER-DEALER AGREEMENT
dated as of April 14, 2000
Relating to
Auction Rate Cumulative Preferred Stock
of
Zenix Income Fund Inc.
______________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
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BROKER-DEALER AGREEMENT dated as of April 14, 2000 among ZENIX INCOME FUND
INC., a Maryland corporation (the "Company"), BANKERS TRUST COMPANY, a New York
corporation (the "Auction Agent") (not in its individual capacity but solely as
agent for the Fund pursuant to authority granted to it in the Auction Agency
Agreement (as defined below)), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC., a New York
corporation (together with its successors and assigns, "SSB").
WHEREAS, the Company proposes to issue 2,400 shares of Auction Rate
Cumulative Preferred Stock pursuant to its Articles of Incorporation and the
Articles Supplementary (as defined below;
WHEREAS, the Articles Supplementary will provide that, for each subsequent
Dividend Period of Preferred Shares then outstanding, the Applicable Rate for
Preferred Shares for such subsequent Dividend Period shall, under certain
conditions, be equal to the rate per annum that results from an Auction for
Outstanding Preferred Shares on the respective date therefor next preceding such
subsequent Dividend Period. The Board of Directors has adopted a resolution
appointing Bankers Trust Company as Auction Agent for purposes of the Auction
Procedures for Preferred Shares; and
WHEREAS, the Auction Procedures require the participation of one or more
Broker-Dealers for Preferred Shares.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Company, the Auction Agent and SSB agree as follows:
1. Definitions and Rules of Construction.
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1.1. Terms Defined by Reference to the Articles Supplementary.
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Capitalized terms not defined herein shall have the respective meanings
specified in Parts I and II of the Articles Supplementary.
1.2. Terms Defined Herein.
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As used herein and in the Settlement Procedures, the following terms shall
have the following meanings, unless the context otherwise requires:
(a) "Articles Supplementary" shall mean the Articles Supplementary by which
the Company's Board of Directors will classify 2,400 shares of authorized and
unissued preferred stock, $.01 par value, and authorize the issuance of a series
of such preferred stock designated Auction Rate Cumulative Preferred Shares, as
such Articles Supplementary, attached hereto as Exhibit A, were filed by the
Company on April __, 2000 with the
State Department of Assessments and Taxation of the State of Maryland, and as
may be amended from time to time.
(b) "Auction" shall have the meaning specified in Section 2.1 hereof.
(c) "Auction Agency Agreement" shall mean the Auction Agency Agreement,
dated as of April 14, 2000, between the Company and the Auction Agent relating
to the Preferred Shares.
(d) "Auction Procedures" shall mean the auction procedures constituting
Part II of the Articles Supplementary as of the filing thereof.
(e) "Authorized Officer" shall mean each Managing Director, Vice President,
Assistant Vice President and Associate of the Auction Agent assigned to its
Corporate Trust and Agency Group and every other officer or employee of the
Auction Agent designated as an "Authorized officer" for purposes of this
Agreement in a communication to SSB.
(f) "SSB Officer" shall mean each officer or employee of SSB designated as
a "SSB Officer" for purposes of this Agreement in a communication to the Auction
Agent.
(g) "Broker-Dealer Agreement" shall mean this Agreement and any
substantially similar agreement between the Auction Agent and a Broker-Dealer.
(h) "Preferred Shares" shall mean the preferred stock, par value $.01 per
share, of the Company designated as its "Auction Rate Cumulative Preferred
Shares".
(i) "Master Purchaser's Letter" shall mean a letter addressed to the
Company, the Auction Agent, a Broker-Dealer and an Agent Member, substantially
in the form attached hereto as Exhibit B.
(j) "Settlement Procedures" shall mean the Settlement Procedures attached
hereto as Exhibit C.
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
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of this Agreement nor shall they affect its meaning, construction or
effect.
(c) The words "hereof 11, "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.
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2.1. Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
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(a) The provisions of the Auction Procedures will be followed by the
Auction Agent for the purpose of determining the Applicable Rate for any
subsequent Dividend Period of Preferred Shares for which the Applicable Rate is
to be determined by an Auction. Each periodic operation of such procedures is
hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures and the
Settlement Procedures are incorporated herein by reference in their entirety and
shall be deemed to be a part hereof to the same extent as if such provisions
were fully set forth herein.
(c) SSB agrees to act as, and assumes the obligations of, and limitations
and restrictions placed upon, a Broker-Dealer under this Agreement for Preferred
Shares. SSB understands that other Persons meeting the requirements specified in
the definition of "Broker-Dealer" contained in the Auction Procedures may
execute Broker-Dealer Agreements and participate as Broker-Dealers in Auctions.
2.2. Preparation for Each Auction.
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(a) Not later than 9:30 A.M. on each Auction Date for Preferred Shares, the
Auction Agent shall advise the Broker-Dealers for Preferred Shares by telephone
of the Maximum Rate therefor and the "AA" Financial Composite Commercial Paper
Rate(s) and Treasury Rate(s), as the case may be, used in determining such
Maximum Rate.
(b) In the event that any Auction Date shall be changed after the Auction
Agent has given the notice referred to in clause (vi) of paragraph (a) of the
Settlement Procedures, or after the notice referred to in Section 2.5(a) hereof,
if applicable, the Auction Agent, by such means as the Auction Agent deems
practicable, shall give notice of such change to SSB not later than the earlier
of 9:15 A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date.
Thereafter, SSB shall
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promptly notify customers of SSB that SSB believes are Existing Holders of
Preferred Shares of such change in the Auction Date.
(c) The Auction Agent from time to time may request the Broker-Dealers to
provide the Auction Agent with a list of their respective customers that such
Broker-Dealers believe are Existing Holders of shares of Preferred Shares. SSB
shall comply with any such request, and the Auction Agent shall keep
confidential any such information so provided by SSB and shall not disclose any
information so provided by SSB to any Person other than the Company and SSB. The
Auction Agent shall transmit any list of customers SSB believes are Existing
Holders of Preferred Shares and information related thereto only to its
officers, employees, agents or representatives who need to know such information
for the purposes of acting in accordance with this Agreement and shall use its
reasonable efforts to prevent the transmission of such information to others and
shall cause its officers, employees, agents and representatives to abide by the
foregoing confidentiality restrictions; provided, however, that the Auction
Agent shall have no responsibility or liability for the actions of any of its
officers, employees, agents or representatives after they have left the employ
of the Auction Agent.
(d) SSB agrees to maintain a list of Potential Holders and to use its best
efforts, subject to existing laws and regulations, to contact the Potential
Holders on such list whom SSB believes may be interested in participating in
such Auction on each Auction Date for the purposes set forth in the Auction
Procedures. Nothing herein shall require SSB to submit an Order for any customer
in any Auction.
(e) The Auction Agent's registry of Existing Holders of shares of a series
of Preferred Shares shall be conclusive and binding on SSB. SSB may inquire of
the Auction Agent between 3:00 P.M. on the Business Day preceding an Auction for
shares of Preferred Shares and 9:30 A.M. on the Auction Date for such Auction to
ascertain the number of shares in respect of which the Auction Agent has
determined SSB to be an Existing Holder. If SSB believes it is the Existing
Holder of fewer shares than specified by the Auction Agent in response to SSB's
inquiry, SSB may so inform the Auction Agent of that belief. SSB shall not, in
its capacity as Existing Holder of shares, submit Orders in such Auction in
respect of shares covering in the aggregate more than the number of shares
specified by the Auction Agent in response to SSB's inquiry.
(f) The Auction Agent is not required to accept the Master Purchaser's
Letter of any Potential Holder who wishes to submit a Bid for the first time in
an Auction or of any Potential Holder or Existing Holder who wishes to amend its
Master Purchaser's Letter intending that such amendment is to take effect with
respect to such Auction unless such letter or
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amendment is received by the Auction Agent by 3:00 P.M. on the Business Day
preceding such Auction.
2.3. Auction Schedule; Method of Submission of Orders; Solicitation of
Potential Holders.
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(a) The Auction Agent shall conduct Auctions for shares of Preferred
Shares in accordance with the schedule set forth below. Such schedule may be
changed by the Auction Agent with the consent of the Company, which consent
shall not be unreasonably withheld or delayed. The Auction Agent shall give
written notice of any such change to each Broker-Dealer. Such notice shall be
given prior to the close of business on the Business Day next preceding the
first Auction Date on which such change shall be effective.
Time Event
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By 9:30 A.M. Auction Agent advises the Company and the Broker-Dealers of the
applicable Maximum Rate and the "AA" Financial Composite Commercial
Paper Rate(s) and Treasury Rate(s), as the case may be, used in
determining such Maximum Rate as set forth in Section 2.2(a) hereof.
9:30 A.M. - 1:00 P.M. Auction Agent assembles information communicated to it by
Broker-Dealers as provided in Section 4(a) of the Auction Procedures.
Submission Deadline is 1:00 P.M.
Not earlier than Auction Agent makes determinations pursuant to Section 5(a) of the
1:00 P.M. Auction Procedures.
By approximately Auction Agent advises company of results of the Auction as provided in
3:00 P.M. Section 7(a) of the Auction Procedures.
Submitted Buy and Submitted Sell Orders are accepted and rejected and
shares of Preferred Shares allocated as provided in Section 6 of the
Auction Procedures.
Auction Agent gives notice of Auction results as set forth in Section
2.4(a) hereof.
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(b) SSB agrees not to sell, assign, or dispose of any share of Preferred
Shares to any Person who has not delivered, or on whose behalf a Broker-Dealer
has not delivered, a signed Master Purchaser's Letter to the Auction Agent. SSB
agrees to maintain a list of Potential Holders and to contact the Potential
Holders on such list on each Auction Date for the purposes set forth in
paragraph (b) of the Auction Procedures. The Auction Agent shall have no duty or
liability with respect to the enforcement of this subsection 2.3(b).
(c) SSB shall submit orders to the Auction Agent writing substantially
in the form attached hereto as Exhibit D. SSB shall submit a separate Order to
the Auction Agent for each potential Holder or Existing Holder on whose behalf
SSB is submitting an order and shall not net or aggregate the orders of
different Potential Holders or Existing Holders on whose behalf SD is submitting
Orders.
(d) SSB shall deliver to the Auction Agent (i) a written notice,
substantially in the form attached hereto as Exhibit E, of transfers of shares
of Preferred Shares made through SSB by an Existing Holder to another Person
other than pursuant to an Auction and shall deliver or cause to be delivered the
related Master Purchaser's Letter executed by such Person if such Person has not
previously so delivered a Master Purchaser's Letter and (ii) a written notice,
substantially in the form attached hereto as Exhibit F, of the failure of any
shares of Preferred Shares to be transferred to or by any Person that purchased
or sold shares of Preferred Shares through SSB pursuant to an Auction. The
Auction Agent is not required to accept any such notice for an Auction unless it
is received by the Auction Agent by 3:00 P.M. on the Business Day preceding such
Auction.
(e) SSB (provided that it has delivered to the Auction Agent its
executed Master Purchaser's Letter) and other Broker-Dealers which have
delivered duly executed Master Purchaser's Letters may submit orders in Auctions
for their own accounts (including Orders for their own accounts where the order
is placed beneficially for a customer) unless the Company shall have notified
SSB and all other Broker-Dealers that they may no longer do so, in which case
Broker-Dealers may continue to submit Hold Orders and Sell Orders for their own
accounts.
(f) SSB agrees to handle its own and its customers' orders in accordance
with its duties under applicable securities laws and rules.
2.4. Notices.
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(a) On each Auction Date, the Auction Agent shall notify SSB by
telephone of the results of the Auction as set forth in paragraph (a) of the
Settlement Procedures. By approximately 11:30 A.M. on the Business Day next
succeeding such
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Auction Date, the Auction Agent shall confirm to SSB in writing the disposition
of all Orders submitted by SSB in such Auction.
(b) SSB shall notify each Existing Holder or Potential Holder on whose
behalf SSB has submitted an Order as set forth in paragraph (b) of the
Settlement Procedures and take such other action as is required of SSB pursuant
to the Settlement Procedures.
2.5. Designation of Special Rate Period.
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(a) If the Company delivers to the Auction Agent a notice of the Auction
Date for Preferred Shares for a Rate Period thereof that next succeeds a Rate
Period that is not a Minimum Rate Period in the form of Exhibit [E] to the
Auction Agency Agreement, the Auction Agent shall deliver such notice to SSB as
promptly as practicable after its receipt of such notice from the Company.
(b) If the Board of Directors of the Company proposes to designate any
succeeding Subsequent Rate Period of Preferred Shares as a Special Rate Period
and the Company delivers to the Auction Agent a notice of such proposed Special
Rate Period in the form of Exhibit [F] to the Auction Agency Agreement, the
Auction Agent shall deliver such notice to SSB as promptly as practicable after
its receipt of such notice from the Company.
(c) If the Board of Directors of the Company determines to designate such
succeeding Subsequent Rate Period as a Special Rate Period, and the Company
delivers to the Auction Agent a notice of such Special Rate Period in the form
of Exhibit [G] to the Auction Agency Agreement not later than 11:00 A.M. on the
second Business Day next preceding the first day of such proposed Special Rate
Period, the Auction Agent shall deliver such notice to SSB not later than 3:00
P.M. on such second Business Day (or, if the Auction Agent has agreed to a later
time or date, as promptly as practicable thereafter).
(d) If the Company shall deliver to the Auction Agent a notice stating that
the Company has determined not to exercise its option to designate such
succeeding Subsequent Rate Period as a Special Rate Period with respect to which
it has delivered a notice in the form of Exhibit [F] to the Auction Agency
Agreement not later than 11:00 A.M. on the second Business Day next preceding
the first day of such proposed Special Rate Period, or shall fail to timely
deliver either such notice or a notice in the form of Exhibit [G] to the Auction
Agency Agreement, the Auction Agent shall deliver a notice in the form of
Exhibit [H] to the Auction Agency Agreement to the Broker-Dealers for Preferred
Shares not later than 3:00 P.M. on such second Business Day.
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2.6. Allocation of Taxable Income.
----------------------------
If the Company delivers to the Auction Agent a notice in the form of
Exhibit [K] to the Auction Agent Agreement designating all or a portion of any
dividend on shares of Preferred Shares to consist of net capital gains or other
income taxable for Federal income tax purposes, the Auction Agent shall deliver
such notice to SSB not later than the Business Day following its receipt of such
notice from the Company. On or prior to the Auction Date referred to in such
notice, SSB will contact each of its customers that SSB believes to be an
Existing Holder of shares of Preferred Shares or a Potential Holder interested
in submitting an Order with respect to the Auction to be held on such Auction
Date, and SSB will notify such customer of the contents of such notice. SSB will
be deemed to have contacted and notified such Existing Holders and Potential
Holders if, for each such holder, (i) it makes a reasonable effort to contact
such holder by telephone, and (ii) upon failing to contact such holder by
telephone it mails or sends by telecopy written notification to such holder at
the mailing address or telecopy number, as the case may be, indicated in such
holder's most recently submitted Master Purchaser's Letter or at such other
address or telecopy number as is indicated in the account records of SSB.
The Auction Agent shall be required to notify SSB within two Business Days
after each Auction of the Auction Agent's receipt of notice from the Company
that such Auction involves an allocation of income taxable for Federal income
tax purposes as to the dollar amount per share of such taxable income and income
exempt from Federal income taxation included in the related dividend.
2.7. Failure to Deposit.
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(a)
(i) any Failure to Deposit shall have occurred with respect to shares
of Preferred Shares during any Rate Period thereof (other than any Special
Rate Period consisting of more than 364 Rate Period Days or any Rate Period
succeeding any Special Rate Period consisting of more than 364 Rate Period
Days during which a Failure to Deposit occurred that has not been cured);
and (ii) prior to 12:00 Noon on the third Business Day next succeeding the
date on which such Failure to Deposit occurred, such Failure to Deposit
shall have been cured as described in Section [2.6(a)] of the Auction
Agency Agreement and the Company shall have paid to the Auction Agent a
late charge as described in such Section [2.6(a)];
then, the Auction Agent shall deliver a notice in the form of Exhibit [I] to the
Auction Agency Agreement by first-class mail, postage prepaid, to SSB not later
than one Business Day after its
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receipt of the payment from the Company curing such Failure to Deposit and such
late charge.
(b) If:
(i) any Failure to Deposit shall have occurred with respect to shares
of Preferred Shares during any Rate Period thereof (other than any Special
Rate Period of more than 364 Rate Period Days or any Rate Period succeeding
any Special Rate Period of more than 364 Rate Period Days during which a
Failure to Deposit occurred but has not been cured), and, prior to 12:00
Noon on the third Business Day next succeeding the date on which such
Failure to Deposit occurred, such Failure to Deposit shall not have been
cured as described in Section [2.7] of the Auction Agency Agreement or the
Company shall not have paid to the Auction Agent the applicable late charge
described in Section [2.7] of the Auction Agency Agreement; or (ii) any
Failure to Deposit shall have occurred with respect to shares of Preferred
Shares during a Special Rate Period thereof of more than 364 Rate Period
Days, or during any Rate Period thereof succeeding any Special Rate Period
of more than 364 Rate Period Days during which a Failure to Deposit
occurred that has not been cured, and, prior to 12:00 noon on the fourth
Business Day preceding the Auction Date for the Rate Period subsequent to
such Rate Period, such Failure to Deposit shall not have been cured as
described in Section [2.7] of the Auction Agency Agreement or the Company
shall not have paid to the Auction the applicable late charge described in
Section [2.7] of the Auction Agency Agreement; then the Auction Agent shall
deliver a notice in the form of Exhibit [H] to the Auction Agency Agreement
to SSB not later than one Business Day after the receipt of the payment
from the Company curing such Failure to Deposit and such late charge.
2.8. Service Charge to be Paid to BD.
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On the Business Day next succeeding each Auction Date for Preferred Shares,
the Auction Agent shall pay to SSB from moneys received from the Company an
amount equal to the product of (a)(i) in the case of any Auction Date
immediately preceding a Rate Period of Preferred Shares consisting of 364 Rate
Period Days or fewer, or (ii) in the case of any Auction Date immediately
preceding the Rate Period of Preferred Shares consisting of more than 364 Rate
Period Days, such percentage as may be agreed upon by the Company and SSB with
respect to such Rate Period times (b) a fraction, the numerator of which is the
number of days in the Rate Period therefor beginning on such Business Day and
the denominator of which is 365, times (c) $25,000, times (d) the sum of (i) the
aggregate number of shares of Preferred Shares placed by SSB in such Auction
that were (A) the subject Of Submitted Bids of Existing Holders submitted by SSB
and continued to be held as a result of such submission and
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(B) the subject of Submitted Bids of Potential Holders submitted by SSB and
purchased as a result of such submission plus (ii) the aggregate number of
shares of Preferred Shares subject to valid Hold orders (determined in
accordance with paragraph (d) of Section [3] of the Auction Procedures)
submitted to the Auction Agent by SSB plus (iii) the number of shares of
Preferred Shares deemed to be subject to Hold Orders by Holders pursuant to
paragraph (c) of Section 3 of the Auction Procedures that were acquired by SSB
for its own account or were acquired by such Existing Holders through SSB.
For purposes of subclause (d)(iii) of the foregoing paragraph, if any
Existing Holder who acquired shares of Preferred Shares through SSB transfers
those shares to another Person other than pursuant to an Auction, then the
Broker-Dealer for the shares so transferred shall continue to be SSB; provided,
however, that if the transfer was effected by, or if the transferee is, a
Broker-Dealer other than SSB, then such Broker-Dealer shall be the Broker-Dealer
for such shares.
2.9. Settlement.
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(a) If any Existing Holder on whose behalf SSB has submitted a Bid or Sell
Order for shares of Preferred Shares that was accepted in whole or in part fails
to instruct its Agent Member to deliver the shares of Preferred Shares subject
to such Bid or Sell Order against payment therefor, SSB shall instruct such
Agent Member to deliver such shares against payment therefor and SSB may deliver
to the potential Holder on whose behalf SSB submitted a Bid for shares of
Preferred Shares that was accepted in whole or in part a number of shares of
Preferred Shares that is less than the number of shares of Preferred Shares
specified in such Bid to be purchased by such Potential Holder.
(b) Neither the Auction Agent nor the Company shall have any responsibility
or liability with respect to the failure of an Existing Holder, a Potential
Holder or its respective Agent Member to deliver shares of Preferred Shares or
to pay for shares of Preferred Shares sold or purchased pursuant to the Auction
Procedures or otherwise.
(c) Notwithstanding any provision of the Auction Procedures or the
Settlement Procedures to the contrary, in the event SSB is an Existing Holder
with respect to shares of Preferred Shares and the Auction Procedures provide
that SSB shall be deemed to have submitted a Sell Order in an Auction with
respect to such shares if SSB fails to submit an Order in that Auction with
respect to such shares, SSB shall have no liability to any Person for failing to
sell such shares pursuant to such a deemed Sell Order if (i) such shares were
transferred by the beneficial owner thereof without notification of such
transfer in compliance with the Auction Procedures or (ii) SSB has indicated to
the Auction Agent pursuant to Section 2.2(e) of this Agreement
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that, according to SSB's records, SSB is not the Existing Holder of such shares.
(d) Notwithstanding any provision of the Auction Procedures or the
Settlement Procedures to the contrary, in the event an Existing Holder of shares
of Preferred Shares with respect to whom a Broker-Dealer submitted a Bid to the
Auction for such shares that was accepted in whole or in part, or submitted or
is deemed to have submitted a Sell Order for such shares that was accepted in
whole or in part, fails to instruct its Agent Member to deliver such shares
against payment therefor, partial deliveries of Preferred Shares that have been
made in respect of potential Holders' Submitted Bids for shares that have been
accepted in whole or in part shall constitute good delivery to such Potential
Holders.
(e) Notwithstanding the foregoing terms of this Section, any delivery or
non-delivery of Preferred Shares which represents any departure from the results
of an Auction for shares, as determined by the Auction Agent, shall be of no
effect for purposes of the registry of Existing Holders maintained by the
Auction Agent pursuant to the Auction Agency Agreement unless and until the
Auction Agent shall have been notified of such delivery or non-delivery.
(f) The Auction Agent shall have no duty or liability with respect to
enforcement of this Section 2.10.
3. The Auction Agent.
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3.1. Duties and Responsibilities.
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(a) The Auction Agent is acting solely as agent for the company hereunder
and owes no fiduciary duties to any other Person, other than the Company, by
reason of this Agreement.
(b) The Auction Agent undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the Auction
Agent shall not be liable for any action taken, suffered, or omitted or for any
error of judgment made by it in the performance of its duties under this
Agreement. The Auction Agent shall not be liable for any error of judgment made
in good faith unless the Auction Agent shall have been negligent in ascertaining
(or failing to ascertain) the pertinent facts.
3.2. Rights of the Auction Agent.
---------------------------
(a) The Auction Agent may rely and shall be protected in acting or
refraining from acting upon any communication authorized hereby and upon any
written instruction,
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notice, request, direction, consent, report, certificate, share certificate or
other instrument, paper or document believed in good faith by it to be genuine.
The Auction Agent shall not be liable for acting upon any telephone
communication authorized by this Agreement which the Auction Agent believes in
good faith to have been given by the Company or by a Broker-Dealer. The Auction
Agent may record telephone communications with the Broker-Dealers.
(b) The Auction Agent may consult with counsel of its choice and the advice
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or risk its
own funds or otherwise incur or become exposed to financial liability in the
performance of its duties hereunder.
3.3. Auction Agent's Disclaimer.
--------------------------
The Auction Agent makes no representation as to the validity or adequacy of
this Agreement, the Auction Agency Agreement, the Articles Supplementary (which
include the Auction Procedures or the Preferred Shares.
4. Miscellaneous.
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4.1. Termination.
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Any party may terminate this Agreement at any time on five days' prior
notice to the other parties. This Agreement shall automatically terminate upon
the termination of the Auction Agency Agreement.
4.2. Participant in Securities Depository.
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(a) SSB is, and shall remain for the term of this agreement, a member of,
or participant in, the Securities Depository (or an affiliate of such a member
or participant).
(b) SSB represents that it (or if SSB does not act as Agent Member, one of
its affiliates) shall make all dividend payments on the Preferred Shares
available in same-day funds on each Dividend Payment Date to customers that use
SSB or an affiliate of SSB as Agent Member.
4.3. Communications.
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Except for (i) communications authorized to be made by telephone pursuant
to this Agreement or the Auction Procedures and (ii) communications in
connection with Auctions (other than those expressly required to be in writing),
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all notices, requests and other communications to either party hereunder shall
be in writing (including telecopy or similar writing) and shall be given to such
party, addressed to it, at its address or telecopy number set forth below:
If to the Company, Zenix Income Fund Inc.
addressed: c/o SSB Citi Fund Management Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
If to SSB, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
addressed: [Address]
Attention:
Telecopier No.:
Telephone No.:
If to the Auction Bankers Trust Company,
Agent, addressed: as Auction Agent
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Auction Rate Securities Group
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
or at such other address or telecopy number as such party may hereafter specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of SSB by a SSB officer and on behalf of
the Auction Agent by an Authorized Officer. SSB may record telephone
communications with the Auction Agent.
4.4. Entire Agreement.
----------------
This Agreement contains the entire agreement among the parties hereto
relating to the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or implied,
between the parties hereto relating to the subject matter hereof.
4.5. Benefits.
--------
Nothing in this Agreement, express or implied, shall give to any person,
other than the Company, the Adviser, the Auction Agent, SSB and their respective
successors and assigns, any benefit of any legal or equitable right, remedy or
claim hereunder.
-13-
4.6. 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. No modification or amendment shall be effective without the written
consent of the Company effected thereby.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by any other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
(c) Notwithstanding any provision to the contrary, the Company may, upon
five Business Days' notice to the Auction Agent and SSB, amend, alter or repeal
any of the provisions contained herein, it being understood that you shall be
deemed to have accepted any such amendment, alteration or repeal if, after the
expiration of such five Business Day period, you submit an order to the Auction
Agent in respect of the Preferred Shares.
4.7. Successors and Assigns.
----------------------
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the respective successors and assigns of each of the Company, the
Adviser, the Auction Agent and SSB.
4.8. Severability.
------------
If any clause, provision or section hereof shall be ruled invalid or
unenforceable by any court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
4.9. Execution in Counterparts.
-------------------------
This Agreement may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
4.10. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware applicable to agreements made and to be performed
in said State without giving effect to the choice of law provisions thereof.
-14-
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.
ZENIX INCOME FUND INC.
By:________________________________
Name:______________________________
Title:_____________________________
BANKERS TRUST
COMPANY, as Auction Agent
By:________________________________
Name:______________________________
Title:_____________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:________________________________
Name:______________________________
Title:_____________________________
-15-
EXHIBIT D
(Submit only one Order on this Order form)
ZENIX INCOME FUND INC.
AUCTION RATE CUMULATIVE PREFERRED SHARES
("Preferred Shares")
ORDER FORM _________________
(Date of Auction)
To: Bankers Trust Company
[Address]
Attention: [___________________]
The undersigned Broker-Dealer submits the following order on behalf of the
Bidder listed below:
Name of Bidder:
Bidder places the Order listed below covering the number of shares
indicated (complete only one blank):
shares now held by Bidder (an Existing Holder), and the order is a (check
one):
[ ] Hold Order; or
[ ] Bid at a rate of _______%; or
[ ] Sell Order;
-or-
shares not now held by Bidder (a Potential Holder), and the Order is a:
Bid at a rate of ______%.
Notes:
(1) If submitting more than one Order for one Bidder, use
additional Order forms.
(2) If one or more orders covering in the aggregate more than the number
of outstanding shares of Preferred Shares held by any Existing Holder
are submitted, such Orders shall be considered valid in the order of
priority set forth in the Auction Procedures.
(3) A Hold order may be placed only by an Existing Holder covering a
number of shares of Preferred Shares not greater than the number of
Shares of Preferred Shares currently held by such Existing Holder.
D-1
(4) Potential Holders may make only Bids, each of which must specify a
rate. If more than one Bid is submitted on behalf of any Potential
Holder, each Bid submitted shall be a separate Bid with the rate
specified.
(5) Bids may contain no more than three figures to the right of the decimal
point (.001 of 1%).
(6) An Order submitted must cover only whole shares of Preferred Shares.
Name of Broker-Dealer:
By:_________________________________
D-2
EXHIBIT E
---------
(To be used only for transfers made
other than pursuant to an Auction)
ZENIX INCOME FUND INC.
AUCTION RATE CUMULATIVE PREFERRED SHARES
("Preferred Shares")
TRANSFER FORM
We are (check one):
[] the Existing Holder named below;
[] the Broker-Dealer named below; or
[] the Agent Member for such Existing Holder.
We hereby notify YOU that such Existing Holder has transferred _________ shares
of Preferred Shares to:
Name/Social Security or Tax ID. No.: ____________________________________
Address: ____________________________________
____________________________________
____________________________________
____________________________________
(Name of Existing Holder)
____________________________________
(Name of Broker-Dealer)
____________________________________
(Name of Agent Member)
By:_________________________________
Printed Name:
Title:
E-1
EXHIBIT F
---------
(To be used only for failures to deliver shares of
Preferred Shares sold pursuant to an Auction)
ZENIX INCOME FUND INC.
AUCTION RATE CUMULATIVE PREFERRED SHARES
("Preferred Shares")
NOTICE OF A FAILURE TO DELIVER
Complete either I or II
-----------------------
I. We are a Broker-Dealer for _____________________ (the "Purchaser"),
which purchased _____________ shares of Preferred Shares (the
"Purchased Shares") in the Auction held on ____________ from the
seller of such shares.
II. We are a Broker-Dealer for ______________ (the "Seller"), which sold
___________ shares of Preferred Shares (the "Sold Shares") in the
Auction held on _______________ to the purchaser of such shares.
We hereby notify you that (check one)--
[] the Seller failed to deliver the Purchased Shares to the Purchaser
[] the Purchaser failed to make payment to the Seller upon delivery of the
Sold Shares
____________________________________
(Name of Broker-Dealer)
By:________________________________
Printed Name:
Title:
FORM OF SCHEDULE-A
------------------
The percentage referred to in Section 2.8 (a) (ii) Of the Agreement for
Rate Periods consisting of four or more Dividend Periods are as follows:
Rate Period Percentage
----------- ----------
This Schedule shall replace and supersede any prior Schedule A to the
Agreement.
ZENIX INCOME FUND INC.
By____________________________
Name:
Title:
BANKERS TRUST COMPANY, as Auction Agent
By____________________________
Name:
Title:
[BROKER-DEALER]
By____________________________
Name:
Title:
Dated:_________________, 20__