__________________________
PAYING AGENT AGREEMENT
between
▇▇▇▇▇▇ MUNICIPAL OPPORTUNITIES TRUST
and
BANKERS TRUST COMPANY
Dated as of May __, 1997
Relating to
Remarketed Preferred Shares, Series B and
Remarketed Preferred Shares, Series C
of
▇▇▇▇▇▇ MUNICIPAL OPPORTUNITIES TRUST
__________________________
TABLE OF CONTENTS
Page
Section 1.01. Purpose.......................................................1
Section 1.02. Definitions...................................................1
Section 1.03. Rules of Construction.........................................2
Section 2.01. Notice of Redemption; Other Redemption Procedures.............3
Section 3.01. Results of Remarketings.......................................5
Section 3.02. Disbursing Dividends and Redemption Price.....................5
Section 3.03. Change in Dividend Period.....................................6
Section 3.04. Notice to the Fund and Remarketing Agent......................6
Section 3.05. Settlement Procedures.........................................7
Section 4.01. Issue of Share Certificates...................................7
Section 4.02. Share Register; Allocation of Shares..........................8
Section 4.03. Registration of Shares........................................8
Section 4.04. Lost Certificates.............................................9
Section 4.05. Disposition of Cancelled Certificates; Record Retention.......9
Section 4.06. Share Transfer Books.........................................10
Section 4.07. Return of Funds..............................................10
Section 5.01. Representations and Warranties of the Fund. .................10
Section 5.02. Representations and Warranties of the Paying Agent. .........11
Section 6.01. Duties and Responsibilities..................................11
Section 6.02. Rights of the Paying Agent...................................12
Section 6.03. Paying Agent's Disclaimer....................................12
Section 6.04. Compensation, Expenses and Indemnification...................12
Section 7.01. Term of Agreement............................................13
Section 7.02. Communications...............................................13
Section 7.03. Entire Agreement.............................................14
Section 7.04. Benefits. ...................................................14
Section 7.05. Amendment; Waiver............................................15
Section 7.06. Successors and Assigns.......................................15
Section 7.07. Severability.................................................15
Section 7.08. Article and Section Headings.................................15
Section 7.09. Counterparts.................................................15
Section 7.10. Governing Law................................................15
PAYING AGENT AGREEMENT
PAYING AGENT AGREEMENT dated as of May __, 1997, between ▇▇▇▇▇▇
MUNICIPAL OPPORTUNITIES TRUST, a Massachusetts business trust (the "Fund"), and
BANKERS TRUST COMPANY (the "Paying Agent").
The Fund proposes to issue 1620 shares of Remarketed Preferred(R)
Shares, Series B ("RPB") and 1620 shares of Remarketed Preferred Shares, Series
C ("RPC", and together with RPB, "RP(R)") pursuant to its Bylaws (as defined
below). The Fund desires that the Paying Agent perform certain duties in
connection with the shares of RP upon the terms and conditions of this Agreement
and hereby appoints the Paying Agent to act in the capacities set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Fund and the Paying Agent agree as follows:
ARTICLE ONE
PURPOSE; DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Purpose. The Trustees of the Fund have adopted one or
more resolutions appointing the Paying Agent as transfer agent, registrar,
dividend and redemption price disbursing agent, settlement agent and agent for
certain notifications for the Fund in connection with the shares of RP. The
Paying Agent accepts such appointment and agrees to act in accordance with (a)
its standard procedures as Paying Agent with respect to the shares of RP, (b)
the Bylaws and (c) this Agreement.
Section 1.02. Definitions. For all purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires,
capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Bylaws.
"Agent Member" of any person shall mean such person's agent member of
the Securities Depository.
"Authorized Newspaper" shall mean a newspaper of general circulation in
the English language generally published on Business Days in The City of New
York.
"Authorized Officer" shall mean each Managing Director, Vice President,
Assistant Vice President, Assistant Secretary and Assistant Treasurer of the
Paying Agent assigned to its Corporate Trust and Agency Group and every other
officer or employee of the Paying Agent designated as an "Authorized Officer"
for purposes hereof in a notice from the Paying Agent to the Fund.
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(R) Registered trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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"Beneficial Owner" shall mean a person that is listed as the beneficial
owner of one or more shares of RP in the records of the Paying Agent or, with
respect to any share not registered in the name of the Securities Depository on
the share transfer books of the Fund, the person in whose name such share is so
registered.
"Business Day" means a day on which the New York Stock Exchange, Inc.
is open for trading, and is not a day on which banks in The City of New York are
authorized or obligated by law to close.
"Bylaws" shall mean the Amended and Restated Bylaws of the Fund as they
may be amended from time to time.
"Commission" shall mean the Securities and Exchange Commission.
"Holder" shall mean, with respect to any share of RP, the person whose
name appears on the share transfer books of the Fund as the registered holder of
such share.
"Notice of Redemption" shall mean a notice of redemption of some or all
shares of RP given by the Fund by telephone or facsimile and in writing
substantially in the form attached hereto as Exhibit A.
"Part" shall mean, as the case may be, either of part I or part II of
Section 12 of the Bylaws establishing the rights and preferences of the shares
of RP.
"Purchase Agreement" shall mean the Purchase Agreement, dated May __,
1997 by and among the Fund, ▇▇▇▇▇▇ Investment Management, Inc., and ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"
or the "Underwriter"), providing for the sale of the shares of RP by the Fund to
the Underwriter.
"Signing Officer" shall mean the Chairman of the Board, the President,
a Vice President or the Treasurer of the Fund and every other officer or
employee of the Fund designated by the Chairman of the Board, the President or a
Vice President as a "Signing Officer" for purposes hereof in a notice to the
Paying Agent.
"Trustees" means the Trustees of the Fund.
"Vice President" when used with respect to the Fund shall mean any Vice
President of the Fund whether or not designated by a number or a word or words
added before or after the title "Vice President."
Section 1.03. Rules of Construction. Unless the context or use
indicates another or different meaning or intent, the following rules shall
apply to the construction of this Agreement: (i) words importing the singular
number shall include the plural number and vice versa; (ii) 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; (iii) the words
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"hereof", "herein", "hereto" and other words of similar import refer to this
Agreement as a whole; and (iv) all references herein to times of day shall be to
New York City time.
ARTICLE TWO
REDEMPTION OF SHARES OF RP
Section 2.01. Notice of Redemption; Other Redemption Procedures.
(a) Notice of redemption, in whole or in part, of any series of RP
pursuant to Part I, paragraph 4 shall be given by the Fund to the Paying Agent,
the Remarketing Agent and the Securities Depository, if any (and any other
Holder) by telephone, in the form of a Notice of Redemption, not later than 1:00
p.m. (and later confirmed in writing), (1) in the case of optional redemption,
not less than 20 nor more than 30 days prior to the earliest date upon which any
such redemption may occur and (2) in the case of mandatory redemption, not less
than 20 nor more than 30 days prior to the redemption date established by the
Trustees and specified in such notice.
(b) In the case of any partial redemption of shares of any series of RP
pursuant to paragraph 4 of Part I, the Paying Agent will use its reasonable
efforts to provide telephonic notice to each Beneficial Owner of shares of RP
selected for redemption not later than the close of business on the Business Day
on which the Paying Agent determines the shares to be redeemed, as described in
clause (e) below (or, during a Non-Payment Period with respect to such shares,
not later than the close of business on the Business Day immediately following
the day on which the Paying Agent receives a Notice of Redemption from the
Fund). Such telephonic notice shall be confirmed promptly in writing by a notice
of redemption substantially in the form of Exhibit B hereto to the Remarketing
Agent and the Securities Depository, if any, and substantially in the form of
Exhibit C to each Beneficial Owner of the shares called for redemption, in each
case not later than the close of business on the Business Day immediately
following the day on which the Paying Agent determines the shares to be
redeemed.
(c) In the case of a redemption in whole of shares of any series of RP
pursuant to paragraph 4 of Part I, the Paying Agent will use reasonable efforts
to provide telephonic notice to each Beneficial Owner of shares of RP called for
redemption not later than the close of business on the Business Day immediately
following the day on which the Paying Agent receives a Notice of Redemption
pursuant to clause (a) above. Such telephonic notice shall be confirmed in
writing by a notice of redemption substantially in the form of Exhibit B hereto
to the Securities Depository, if any, and the Remarketing Agent and
substantially in the form of Exhibit C hereto to each Beneficial Owner of the
shares called for redemption, in each case not later than the close of business
on the second Business Day following the day on which the Paying Agent receives
a Notice of Redemption.
(d) Every Notice of Redemption and every other notice of redemption
sent to Beneficial Owners of shares subject to redemption shall state: (i) the
redemption date; (ii) the number of shares of RP to
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be redeemed; (iii) the redemption price; (iv) that dividends on the shares of RP
to be redeemed will cease to accumulate as of such redemption date; and (v) the
provisions of the Declaration of Trust, the Bylaws and the applicable Statement
pursuant to which such shares are being redeemed. In addition, notice of
redemption given to Beneficial Owners shall state the CUSIP numbers, if any, of
the shares of RP to be redeemed and the manner in which the Beneficial Owners of
such shares may obtain payment of the redemption price. No defect in the Notice
of Redemption or other redemption notice or in the transmittal or mailing
thereof shall affect the validity of the redemption proceedings, except as
required by applicable law. The Paying Agent will use its reasonable efforts to
cause any Notice of Redemption to be published in an Authorized Newspaper within
two Business Days of the date of such Notice of Redemption pursuant to clause
(a) above, but failure so to publish such Notice of Redemption shall not affect
the validity or effectiveness of any such redemption proceedings.
(e) (i) Subject to clause (e)(ii) below, if fewer than all the
outstanding shares of any series of RP are to be redeemed, the number of such
shares to be redeemed shall be a whole number of shares and shall be determined
by the Trustees, and the Fund shall give a Notice of Redemption; provided that
(i) no such share of RP will be subject to optional redemption on any Dividend
Payment Date during a Non-Call Period to which it is subject and (ii) shares of
RP subject to a Non-Call Period will be subject to mandatory redemption only on
the basis described in clause (f) below. Unless certificates representing shares
are held by Holders other than the Securities Depository or its nominee, the
Securities Depository will, upon receipt of such notice, determine by lot the
number of shares of such series of RP to be redeemed from the account of each
Agent Member (which may include an Agent Member, including a Remarketing Agent,
holding shares for its own account) and notify the Paying Agent of such
determination. The Paying Agent, upon receipt of such notice, will in turn
determine by lot the number of shares of such series of RP to be redeemed from
the accounts of the Beneficial Owners of the shares of such series of RP whose
Agent Members have been selected by the Securities Depository and give notice of
such determination to the Remarketing Agent. In doing so, shares may be redeemed
from the accounts of some Beneficial Owners, which may include the Remarketing
Agent, without shares being redeemed from the accounts of other Beneficial
Owners.
(ii) Notwithstanding clause (e)(i) above, if certificates
representing shares of any series of RP are held by Holders other than the
Securities Depository, then the shares of such series of RP to be redeemed shall
be selected by the Paying Agent by lot.
(f) Any share of RP will be subject to mandatory redemption regardless
of whether such share is subject to a Non-Call Period, provided that shares of
RP subject to a Non-Call Period will only be subject to redemption to the extent
that the other shares of such series of RP not subject to a Non-Call Period or
other Preferred Shares are not available to satisfy the number of shares
required to be redeemed. In such event, such shares subject to a Non-Call Period
shall be selected for redemption in an ascending order of outstanding Non-Call
Period (with shares with the lowest number of days remaining in the Period to be
called first) and by lot in the event of equal outstanding Non-Call Periods.
(g) Notwithstanding the foregoing provisions of this Section 2.01, the
Remarketing Agent may, in its sole discretion, modify the procedures set forth
above with respect to notification of redemption for shares of RP, provided that
any such modification does not
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adversely affect any Holder of shares of RP or materially alter the obligations
of the Paying Agent or the Fund; and further provided that the Trust receives
written confirmation from S&P and ▇▇▇▇▇'▇ that any such modification would not
impair the ratings then assigned by S&P and ▇▇▇▇▇'▇ to shares of RP.
ARTICLE THREE
PAYING AGENT AS DIVIDEND AND REDEMPTION PRICE
DISBURSING AGENT, SETTLEMENT AGENT AND AGENT FOR
CERTAIN NOTIFICATIONS
Section 3.01. Results of Remarketings.
(a) On each Remarketing Date, the Fund will cause the Remarketing Agent
to advise the Paying Agent by electronic data transfer or telecopy by 3:30 p.m.
of (i) the Applicable Dividend Rate determined in the related Remarketing; (ii)
the identities of (and the number of shares held by) the Beneficial Owners who
purchased such shares of RP as a result of the Remarketing; and (iii) the
identities of (and number of shares sold by) persons who sold shares of RP in
the Remarketing. By approximately 4:30 p.m. on such Remarketing Date, the Paying
Agent will confirm by telephone, telecopy or electronic data transfer such
information with the Remarketing Agent.
(b) This Section shall not be applicable to any share of RP during a
Non-Payment Period applicable to such series.
Section 3.02. Disbursing Dividends and Redemption Price.
(a) The Fund shall deposit in same-day funds with the Paying Agent by
12:00 noon (i) on each Dividend Payment Date for a series of RP, the full amount
of any dividend declared and payable on such Dividend Payment Date on any share
of RP, and (ii) on any redemption date, the Optional Redemption Price or
Mandatory Redemption Price, as the case may be, for each share of RP called for
redemption. With respect to any such deposit which is not made by the Fund by
12:00 noon on a Dividend Payment Date for such shares of RP (if, prior to 12:00
noon on such Dividend Payment Date, the Fund has declared such dividend payable
on or within three Business Days after such Dividend Payment Date to the Holders
who held such shares of RP as of 12:00 noon on the Business Day preceding such
Dividend Payment Date) or redemption date for any shares of RP subject to
redemption, as the case may be, but made within three Business Days after such
due date, the Fund shall also deposit with the Paying Agent a late charge in
such an amount as shall be calculated by the Fund for such period of non-payment
at the Non-Payment Period Rate applied to the amount of such non-payment based
on the actual number of days comprising such period divided by 365, all as more
fully described in the Bylaws. The Paying Agent agrees to hold all moneys so
deposited with the Paying Agent by the Fund in trust for the payment of
dividends, the redemption price or any applicable late charge on shares of RP
for the benefit of the Holders entitled thereto and to apply such moneys as set
forth in clause (b) below.
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(b) The Paying Agent will pay to the applicable Holder, as determined
pursuant to the Bylaws, on the Business Day following the Fund's deposit of
funds in accordance with the provisions of paragraph (a) above (provided,
however, that such payment shall be made on the Business Day following such
Business Day following the Fund's deposit of funds if such deposit is made after
12:00 noon) (or, in the case of dividends in arrears on any share of RP, at any
time as may be fixed by the Fund), (i) dividends, including any late charge, on
the applicable shares of RP, and (ii) the Optional Redemption Price or Mandatory
Redemption Price, as the case may be, plus any late charge, on any shares of RP
called for redemption, in either case after receipt of the necessary funds from
the Fund with which to make such payments. The amount of dividends for any
Dividend Period to be paid by the Paying Agent to the Holder entitled thereto
will be determined by the Fund as set forth in Part I, paragraph 3. The
redemption price to be paid by the Paying Agent to the Holder entitled thereto
will be determined by the Fund as set forth in Part I, paragraph 4. The Paying
Agent shall have no duty to determine the redemption price or the Non-Payment
Period Rate and may rely on the amount thereof set forth in the Notice of
Redemption. Upon the request of the Fund, the Paying Agent shall promptly
transmit to the Fund after the date of any redemption as described above any
cash held by the Paying Agent in excess of the aggregate redemption price of
shares of RP called for redemption on such date.
Section 3.03. Change in Dividend Period. Upon any change in the period
of time between Dividend Payment Dates for shares of a series of RP as a result
of a change in law or otherwise, the Fund will give notice of such change to the
Paying Agent and the Remarketing Agent and the Paying Agent will use reasonable
efforts to notify the Holders thereof by telephone, confirmed in writing of such
change; provided that if the Dividend Period whose length is being adjusted is a
Dividend Period for which the Applicable Dividend Rate is the Non-Payment Period
Rate, the Fund will notify the Holders of shares of such series of RP directly.
Section 3.04. Notice to the Fund and Remarketing Agent. If one or more
of the following events occurs with respect to shares of any series of RP, the
Paying Agent shall promptly notify the Fund and, so long as the Applicable
Dividend Rate applicable to shares of such series shall not be the Non-Payment
Period Rate, the Remarketing Agent, of such occurrence by telephone, promptly
confirmed in writing:
(i) at the close of business on any Dividend Payment Date for
such shares, dividends on all outstanding shares accumulated to any Dividend
Payment Date for such shares of such series, including such first mentioned
Dividend Payment Date, have not been paid in full or sufficient funds have not
been deposited with the Paying Agent for the payment of such accumulated
dividends;
(ii) the Fund has failed to redeem on any redemption date any
shares for which Notice of Redemption has been received by the Paying Agent; or
(iii) by 12:00 Noon on the third Business Day following the
occurrence of either of the events described in (i) or (ii) above, the Fund has
not deposited with the Paying Agent the full amount of funds described in
subparagraph (a) of Section 3.02.
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Section 3.05. Settlement Procedures.
(a) In the event that any person other than the Paying Agent fails to
perform any act necessary to enable the Paying Agent to act as contemplated by
this Section, the Paying Agent shall take such steps as are reasonably requested
by the Fund or the Remarketing Agent (and approved by the Fund) to facilitate
the transfers contemplated by this Section even if such transfers cannot take
place within the time periods set forth in this Section.
(b) On the first day of any Dividend Period on which the Applicable
Dividend Rate applicable to any share of RP shall be the Non-Payment Period
Rate, this Section 3.05 shall no longer be applicable to such share of RP.
(c) Notwithstanding the foregoing provisions of this Section 3.05, the
Remarketing Agent may, in its sole discretion, modify the procedures set forth
above in Article 3 with respect to the shares of RP, provided any modification
does not adversely affect the Holders or the Beneficial Owners of such shares or
the Fund.
ARTICLE FOUR
PAYING AGENT AS TRANSFER AGENT AND REGISTRAR
Section 4.01. Issue of Share Certificates. On the Date of Original
Issue of RP, one certificate for shares of each series of RP shall be issued by
the Fund. At the request of the Fund, such certificates shall be registered as
instructed by the Fund and countersigned by the Paying Agent in its capacity as
registrar, which, except in the event a Securities Depository is used, shall
deliver the certificates as instructed by the Fund in writing. If a Securities
Depository is used, the Paying Agent shall hold the certificates as custodian
for the Securities Depository. At no time shall the aggregate number of shares
of a series of RP represented by such countersigned certificate exceed the
number of then outstanding shares of that series of RP.
Section 4.02. Share Register; Allocation of Shares.
(a) So long as the Applicable Dividend Rate for shares of a series of
RP shall not be the Non-Payment Period Rate, the Paying Agent shall maintain a
registry of the Beneficial Owners of the shares which shall specify with respect
to each Beneficial Owner the Remarketing Agent through which such Beneficial
Owner purchased and holds its shares. By 9:00 a.m. on each Remarketing Date, the
Paying Agent shall inform the Remarketing Agent of the name of each Beneficial
Owner of shares of RP subject to Tender and Dividend Reset and the number of
such shares. On each Remarketing Date, the Paying Agent shall deliver a copy of
such registry to the Fund. On or prior to their original issuance, the Fund
shall cause the Underwriter to provide the Paying Agent with a list of the
initial Beneficial Owners of the shares of RP who purchased shares of RP through
the Underwriter and, as to each such Beneficial Owner, (i) its address and
telephone number, including the name of an individual or department authorized
to receive notices pursuant to this agreement, (ii) the name and Securities
Depository account number of its Agent Member and (iii) such other information
as the Paying Agent may reasonably require
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(collectively, "Beneficial Owner Information"). The Paying Agent may rely
exclusively upon, as conclusive evidence of the identities of the Beneficial
Owners, (i) such lists; (ii) the results of Remarketings reported to the Paying
Agent by the Remarketing Agent; and (iii) notice from the Remarketing Agent with
respect to the transfer of shares of RP outside of a Remarketing by a Beneficial
Owner to another person.
(b) The Paying Agent shall only register a transfer of shares of RP
from a Beneficial Owner to a new Beneficial Owner if (i) the Paying Agent has
been notified of such transfer by the Remarketing Agent who provides the
Beneficial Owner Information for the new Beneficial Owner, or (ii) the Paying
Agent has been notified in writing in a notice substantially in the form of
Exhibit D hereto by the Remarketing Agent of such transfer outside of a
Remarketing therefor. The Paying Agent shall not be required to accept any
notice delivered pursuant to the foregoing sentence unless received by the
Paying Agent by 3:00 p.m. on the Business Day preceding the immediately
succeeding Remarketing Date for such shares for such Remarketing.
(c) Except as otherwise provided in this Section, the foregoing
provisions of this Section shall no longer be applicable to shares of a series
of RP if the Applicable Dividend Rate applicable to all shares of such series
shall be the Non-Payment Period Rate.
Section 4.03. Registration of Shares.
(a) If a Securities Depository is used for any series of RP and except
as set forth in this Section, shares of such series of RP shall be registered
solely in the name of the Securities Depository or its nominee. If, with respect
to shares of such series of RP, the Securities Depository shall give notice of
its intention to resign as such, and if the Fund shall not have selected a
substitute Securities Depository with respect to shares of such series of RP
reasonably acceptable to the Paying Agent prior to such resignation, then upon
such resignation, such shares of such series of RP shall be registered for
transfer or exchange, and new certificates shall be issued in the name of the
designated transferee or transferees of the Securities Depository, upon
surrender of the old certificates in a form deemed by the Paying Agent in its
capacity as registrar properly endorsed for transfer with (i) all necessary
endorsers' signatures guaranteed in such manner and form as the Paying Agent in
its capacity as registrar may require by a guarantor reasonably believed by the
Paying Agent in its capacity as registrar to be responsible; (ii) such
assurances as the Paying Agent in its capacity as registrar shall deem necessary
or appropriate to evidence the genuineness and effectiveness of each necessary
endorsement; and (iii) satisfactory evidence of compliance with all applicable
laws relating to the collection of taxes or funds necessary for the payment of
such taxes.
(b) If certificates representing shares of any series of RP are, at the
direction of the Fund, to be held by Holders other than the Securities
Depository, such shares shall be registered for transfer or exchange, and the
Fund shall issue one or more new certificates with respect to such shares
registered in the names of the Beneficial Owners thereof or their nominees, upon
surrender of the old certificates in a form deemed by the Paying Agent properly
endorsed for transfer, with (i) 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; (ii) such assurances
as the Paying Agent shall deem necessary or appropriate to
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evidence the genuineness and effectiveness of each necessary endorsement; and
(iii) satisfactory evidence of compliance with all applicable laws relating to
the collection of taxes or funds necessary for the payment of such taxes.
Section 4.04. Lost 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 Fund and the Paying Agent, subject at all times to
provisions of law, the Bylaws and resolutions adopted by the Fund with respect
to lost securities. The Paying Agent may issue new certificates in exchange for
and upon the cancellation of mutilated certificates. Any request by the Fund to
the Paying Agent to issue a replacement or new certificate pursuant to this
Section shall be deemed to be a representation and warranty by the Fund to the
Paying Agent that such issuance will comply with applicable provisions of law
and the Bylaws and resolutions of the Fund.
Section 4.05. Disposition of Cancelled Certificates; Record Retention.
The Paying Agent shall retain share certificates which have been cancelled in
transfer or in exchange and accompanying documentation for two calendar years
from the date of such cancellation. The Paying Agent shall afford access to the
Fund, its agents and counsel upon written request at reasonable times during
normal business hours to review and make extracts or copies of such certificates
and accompanying documentation. Upon the expiration of such two-year period, the
Paying Agent shall deliver to the Fund the cancelled certificates and
accompanying documentation. The Fund shall, at its sole cost and expense, retain
such records for a minimum additional period of ten calendar years from the date
of delivery of the records to the Fund and shall make such records available
during normal business hours upon written request during this period at any
time, or from time to time, for reasonable periodic, special or other
examinations by representatives of the Commission. The Fund shall also undertake
to furnish to the Commission, upon demand, at either its principal office or at
any regional office, complete, correct and current hard copies of any and all
such records.
Section 4.06. Share Transfer Books. The Paying Agent shall maintain the
share transfer books listing the Holders of the shares of each series of RP. In
case of any request or demand for the inspection of the share transfer books of
the Fund or any other books in the possession of the Paying Agent, the Paying
Agent will notify the Fund and secure written instructions as to permitting or
refusing such inspection. Notwithstanding the foregoing, the Paying Agent
reserves the right to exhibit the share transfer books or other books 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 Paying Agent shall have
received sufficient indemnification.
Section 4.07. Return of Funds. The Paying Agent shall notify the Fund
in writing of the amount of any funds deposited with the Paying Agent by the
Fund for any reason under this Agreement, including for the payment of dividends
or the redemption of shares of RP, that remain with the Paying Agent after 90
days from the date of such deposit and such amount shall, to the extent
permitted by law, be repaid to the Fund by the Paying Agent. The Paying Agent
shall have no duty to invest any funds deposited with it at any time pursuant to
this Agreement. The Fund shall be entitled, however, to receive, from time to
time after the date fixed for redemption, investment earnings, if any, on the
funds so deposited.
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ARTICLE FIVE
REPRESENTATIONS AND WARRANTIES
Section 5.01. Representations and Warranties of the Fund. The Fund
represents and warrants to the Paying Agent that:
(a) the Fund is duly established and is validly existing as a voluntary
association 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 RP;
(b) this Agreement has been duly and validly authorized, executed and
delivered by the Fund, is enforceable in accordance with its terms and
constitutes the legal, valid and binding obligation of the Fund;
(c) the form of the certificates evidencing the shares of each series
of RP comply with all applicable laws of The Commonwealth of Massachusetts;
(d) the shares of RP have been duly authorized and are validly issued,
fully paid and nonassessable (except as set forth in the Fund's Prospectus
relating to the shares of RP);
(e) no 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 the issuance of the shares of RP
except as required by the Securities Act of 1933, as amended, the 1940 Act, the
rules and regulations promulgated thereunder, and applicable state securities
laws, in each case as in effect at the date hereof, all of which have been
taken, obtained or made and are in full force and effect on the date hereof;
(f) the execution and delivery of this Agreement and the issuance and
delivery of the shares of RP do not and will not conflict with, violate or
result in a breach of, in any material respects, the terms, conditions or
provisions of, or constitute a default under, the Agreement and Declaration of
Trust or the Bylaws of the Fund, any law or regulation, any order or decree of
any court or public authority having jurisdiction, or any mortgage, indenture,
contract, agreement or undertaking to which the Fund is a party or by which it
is bound; and
(g) no taxes are payable by the Fund upon or in respect of the
execution of this Agreement or the issuance of the shares of RP.
Section 5.02. Representations and Warranties of the Paying Agent. The
Paying Agent represents and warrants to the Fund that the Paying Agent is duly
organized and is validly existing as a banking corporation under the laws of the
State of New York and has the power to enter into and perform its obligations
under this Agreement.
ARTICLE SIX
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THE PAYING AGENT
Section 6.01. Duties and Responsibilities.
(a) The Paying Agent is not a trustee and is acting solely as agent for
the Fund hereunder and owes no fiduciary duties to any other person by reason of
this Agreement.
(b) The Paying Agent undertakes to perform such duties and only such
duties as are specifically set forth in or incorporated by reference into this
Agreement, and no implied covenants or obligations shall be read into this
Agreement against the Paying Agent.
(c) In the absence of negligence or willful misconduct on its part, the
Paying 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 Paying Agent shall not be liable for any error of judgment made
in good faith unless the Paying Agent shall have been negligent in ascertaining
or failing to ascertain the pertinent facts.
Section 6.02. Rights of the Paying Agent.
(a) The Paying Agent may rely and shall be protected in acting or
refraining from acting upon any communication authorized hereby and upon any
written instruction, notice, request, direction, consent, report, certificate,
share certificate or other instrument, paper or document, in each case
reasonably believed by it to be genuine. The Paying Agent shall not be liable
for acting upon any telephone communication authorized hereby which the Paying
Agent believes in good faith to have been given by the Fund, a Holder, a
Beneficial Owner, an Agent Member or Remarketing Agent. The Paying Agent may
record telephone communications with the Fund and the Remarketing Agent in
connection with its duties hereunder.
(b) The Paying Agent may consult with counsel and the advice of such
counsel shall be full and complete authorization and protection in respect of
any action (other than willful misconduct) taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Paying 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.
(d) The Paying Agent may exercise its rights hereunder and, with the
prior written consent of the Fund, may perform its duties hereunder either
directly or by or through agents or attorneys.
Section 6.03. Paying Agent's Disclaimer. The Paying Agent makes no
representation as to the validity or adequacy of this Agreement or any share of
RP.
Section 6.04. Compensation, Expenses and Indemnification.
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(a) The Fund shall pay the Paying Agent, from time to time, reasonable
compensation for all services rendered by it under this Agreement as shall be
agreed upon by the Fund and the Paying Agent.
(b) The Fund shall reimburse the Paying Agent, upon the Paying Agent's
request, for all reasonable out-of-pocket expenses, disbursements and advances
which shall have been agreed upon by the Fund and the Paying Agent and shall
have been incurred or made by the Paying Agent in accordance with the provisions
of this Agreement (including the reasonable compensation, expenses and
disbursements of any agent or counsel for the Paying Agent) except any expense
or disbursement attributable to its negligence or willful misconduct.
(c) The Fund shall indemnify the Paying Agent for and hold it harmless
against any loss, liability or expense incurred without negligence or willful
misconduct on the Paying Agent's part, arising out of or in connection with its
agency under this Agreement, including the costs and expenses of defending
itself against any claim or liability (including reasonable attorneys' fees) in
connection with its exercise or performance of any of its duties hereunder.
ARTICLE SEVEN
MISCELLANEOUS
Section 7.01. Term of Agreement.
(a) The term of this Agreement is unlimited unless it shall be
terminated as provided in this Section. The Fund may terminate this Agreement at
any time by so notifying the Paying Agent, provided that, so long as any shares
of RP are outstanding, the Fund has entered into an agreement with a successor
Paying Agent in substantially the form of this Agreement. The Paying Agent may
terminate this Agreement, subject to the acceptance of the Fund, upon notice to
the Fund on the date specified in such notice, which shall be no earlier than 90
days after the date of delivery of such notice. If an instrument of acceptance
shall not have been delivered to the resigning Paying Agent within 30 days after
the giving of such notice of resignation, the resigning Paying Agent may, at the
expense of the Fund, petition any court of competent jurisdiction for the
appointment of a successor Paying Agent.
(b) Except as otherwise provided in this clause (b), the respective
rights and duties of the Fund and the Paying Agent under this Agreement shall
cease upon termination of this Agreement. The Fund's representations,
warranties, covenants and obligations to the Paying Agent under Sections 5.01
and 6.04 hereof shall survive the termination hereof. Upon termination of this
Agreement, the Paying Agent shall (i) at the request of the Fund, promptly
deliver to the Fund copies of all books and records maintained by it in
connection with its duties hereunder, and (ii) at the request of the Fund,
promptly transfer to the Fund or any successor Paying Agent any funds held for
the Fund which have not previously been distributed by the Paying Agent in
accordance with this Agreement.
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Section 7.02. Communications. Except for communications authorized to
be by telephone pursuant to this Agreement, all notices, requests and other
communications to any party hereunder shall be in writing (including telecopy or
similar writing) given to such person at its address or telecopy number set
forth below:
If to the Fund: ▇▇▇▇▇▇ Municipal Opportunities Trust
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Paying
Agent: Bankers Trust Company
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Auction Rate/Remarketed
Securities Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the
Remarketing Agent: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
World Financial Center - ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Remarketed Preferred
Transactions Desk
(▇▇▇ ▇▇▇▇▇)
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the
Securities
Depository: The Depository Trust Company
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Manager, Cash Receipts
Section Dividend
Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the party to whom the communication is addressed
shall have previously communicated to the other party. Any notice to a
Beneficial Owner shall be given at the address or phone number, as the case may
be, as the Remarketing Agent or the Agent Member for such Beneficial Owner shall
have previously communicated to the Paying Agent. Communications shall be given
on behalf of the Fund by a Signing Officer and on behalf of the
-13-
Paying Agent by an Authorized Officer. Communications shall be effective when
received at the proper address.
Section 7.03. 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.
Section 7.04. Benefits. Nothing herein, express or implied, shall give
to any person, other than the Fund, the Paying Agent and their respective
successors and assigns, any benefit of any legal or equitable right, remedy or
claim hereunder. In particular, and without limiting the generality of the
foregoing, no Holder or Beneficial Owner of any shares of RP shall have or be
deemed to have any right in respect of, or shall in any event be entitled to
enforce or to seek recourse against any person in respect of any provision of
this Agreement, and any and all rights of shareholders of RP or obligations of
the Fund in respect thereof arise only under and are governed solely by the
Declaration of Trust and Bylaws of the Fund as they are in effect from time to
time.
Section 7.05. Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of each party.
(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 rights or remedies with respect to any
subsequent breach.
Section 7.06. 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 Fund and the Paying Agent. Without the prior written
consent of the Fund, the Paying Agent may not assign this Agreement except by
operation of law or to a person who acquires substantially all of the assets and
assumes all of the liabilities of the Paying Agent, either directly or by
operation of law.
Section 7.07. 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.
Section 7.08. Article and Section Headings. The Article and Section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 7.09. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original, but all of which counterparts shall together constitute but
one and the same instrument.
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Section 7.10. 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 performed in said State.
Section 7.11. Fund Only. A copy of the Agreement and Declaration of
Trust of the Fund is on file with the Secretary of State of The Commonwealth of
Massachusetts and notice is hereby given that this Agreement has been executed
on behalf of the Fund by an officer of the Fund as an officer and not
individually and the obligations of the Fund arising out of this
Agreement are not binding upon any of the trustees, officers or shareholders of
the Fund individually but are binding only upon the assets and property of the
Fund.
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.
▇▇▇▇▇▇ MUNICIPAL OPPORTUNITIES TRUST
By:
---------------------------
Title:
BANKERS TRUST COMPANY
By:
----------------------------
Title:
-15-
EXHIBIT A
▇▇▇▇▇▇ MUNICIPAL OPPORTUNITIES TRUST
NOTICE OF REDEMPTION OF
REMARKETED PREFERRED(R) SHARES, SERIES [INSERT SERIES] ("Series __RP"(R))
NOTICE IS HEREBY given that, pursuant to the provisions of paragraph 4
of Part I of Section 12 of the Bylaws of ▇▇▇▇▇▇ Municipal Opportunities Trust
(the "Fund"), the Fund will redeem on , , (the "Redemption Date")
shares (the "Redemption Shares") of its then outstanding Series __ RP at the
redemption price of $25,000 per share plus accumulated but unpaid dividends to
the Redemption Date plus premium, if any.
Payment of an amount equal to the redemption price, plus accumulated
but unpaid dividends to the Redemption Date, will be deposited, in same-day
funds, with the Paying Agent by 12:00 p.m., New York time, on the Redemption
Date or at such other time as is permitted under the Bylaws of the Fund.
As of , dividends on the Redemption Shares will cease to
accumulate.
[Date] ▇▇▇▇▇▇ MUNICIPAL OPPORTUNITIES TRUST
By:
-----------------------
Title:
--------
(R) Registered trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
-1-
EXHIBIT B
[Paying Agent to Remarketing Agent and Securities Depository]
▇▇▇▇▇▇ MUNICIPAL OPPORTUNITIES TRUST
NOTICE OF REDEMPTION
REMARKETED PREFERRED(R) SHARES, [INSERT SERIES] ("Series __RP"(R))
NOTICE IS HEREBY given that, pursuant to the provisions of paragraph 4
of Part I of Section 12 of the Bylaws of ▇▇▇▇▇▇ Municipal Opportunities Trust
(the "Fund"), the Fund will redeem on , (the "Redemption Date")
shares (the "Redemption Shares") of its then outstanding Series __ RP at the
redemption price of $25,000 per share plus accumulated but unpaid dividends to
the Redemption Date plus premium, if any.
Payment of an amount equal to the redemption price, including
accumulated but unpaid dividends to the Redemption Date, will be made pursuant
to the Paying Agent Agreement.
As of , dividends on the Redemption Shares
will cease to accumulate.
[Date] BANKERS TRUST COMPANY
By:
---------------------
Title:
--------
(R) Registered trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
-2-
3201417.05
EXHIBIT C
[Paying Agent to Beneficial Owner]
▇▇▇▇▇▇ MUNICIPAL OPPORTUNITIES TRUST
NOTICE OF REDEMPTION OF
REMARKETED PREFERRED(R) SHARES, SERIES [INSERT SERIES] ("Series __RP"(R))
NOTICE IS HEREBY given that, pursuant to the provisions of paragraph 4 of Part I
of Section 12 of the Bylaws of ▇▇▇▇▇▇ Municipal Opportunities Trust (the
"Fund"), the Fund will redeem on , (the "Redemption Date") shares
(the "Redemption Shares") of its then outstanding Series __ RP at the redemption
price of $25,000 per share plus accumulated but unpaid dividends to the
Redemption Date plus premium, if any. [You shall instruct your Agent Member to
deliver by .m. on the Redemption Date, by book entry, shares selected for
redemption as provided in the Paying Agent Agreement against receipt of payment
therefor.]2 [You shall present and surrender at the office of the Paying Agent
by .m. on the Redemption Date the certificate or certificates evidencing
shares selected for redemption as provided in the Paying Agent Agreement against
receipt of payment therefor.]2
Payment of the redemption price, including accumulated but unpaid
dividends to the Redemption Date, will be made pursuant to the Paying Agent
Agreement.
As of , dividends on the Redemption Shares will
cease to accumulate.
[Date] BANKERS TRUST COMPANY
By:
-----------------
Title:
--------
(R) Registered trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
2 Delete if not applicable.
-3-
EXHIBIT D
[Remarketing Agent to Paying Agent --
To be used only for transfers made
other than pursuant to a Remarketing]
▇▇▇▇▇▇ MUNICIPAL OPPORTUNITIES TRUST
REMARKETED PREFERRED SHARES, SERIES [INSERT SERIES] ("Series __RP"(R))
TRANSFER FORM
The undersigned hereby notifies you that:
__________________________________________
(Print name of existing beneficial owner)
has sold _________ shares of Series __ RP
(CUSIP No. ) to
__________________________________________
(Print name of new Beneficial Owner)
__________________________________________
(Print address of new Beneficial Owner)
__________________________________________
(Print telephone number of new Beneficial Owner)
__________________________________________
(Print name and Securities Depository account
number of new Agent Member)
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:
--------------------------------------
Name:
Title:
--------
(R) Registered trademark of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
-4-