PORTIONS OF BYLAWS
RELATING TO SHAREHOLDERS' RIGHTS
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ARTICLE 10
Provisions Relating to the Conduct of the Trust's Business
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10.4 REPORTS TO SHAREHOLDERS. The Trust shall send to each shareholder of record
at least semi-annually a statement of the condition of the Trust and of the
results of its operations, containing all information required by applicable
laws or regulations.
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ARTICLE 11
Shareholders
11.1 ANNUAL MEETING. The annual meeting of the shareholders of the Trust shall
be held on the last Friday in April in each year or on such other day as may be
fixed by the Trustees. The meeting shall be held at such time as the Chairman of
the Trustees or the Trustees may fix in the notice of the meeting or otherwise.
Purposes for which an annual meeting is to be held, additional to those
prescribed by law or these Bylaws, may be specified by the Chairman of the
Trustees or by the Trustees.
11.2 RECORD DATES. For the purpose of determining the shareholders of any series
or class of shares of the Trust who are entitled to vote or act at any meeting
or any adjournment thereof, or who are entitled to receive payment of any
dividend or of any other distribution, the Trustees may from time to time fix a
time, which shall be not more than 90 days before the date of any meeting of
shareholders or more than 60 days before the date of payment of any dividend or
of any other distribution, as the record date for determining the shareholders
of such series or class having the right to notice of and to vote at such
meeting and any adjournment thereof or the right to receive such dividend or
distribution, and in such case only shareholders of record on such record date
shall have such right notwithstanding any transfer of shares on the books of the
Trust after the record date; or without fixing such record date the Trustees may
for any such purposes close the register or transfer books for all or part of
such period.
11.3 PROXIES. The placing of a shareholder's name on a proxy pursuant to
telephone or electronically transmitted instructions obtained pursuant to
procedures reasonably designed to verify that such instructions have been
authorized by such shareholder shall constitute execution of such proxy by or on
behalf of such shareholder.
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ARTICLE 12
Shares of Beneficial Interest
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12.1 STATEMENT CREATING TWO SERIES OF REMARKETED PREFERRED SHARES.
PART I.
DESIGNATION
SERIES A: A series of 630 shares of preferred shares, without par
value, liquidation preference $50,000 per share plus accumulated but unpaid
dividends, if any, thereon (whether or not earned or declared), is hereby
designated "Remarketed Preferred Shares, Series A" and is referred to below
as "Series A RP-Registered Trademark-". Each share of Series A RP shall be
issued on a date to be determined by the Trustees of the Trust or a duly
authorized committee thereof; have such initial dividend rate as shall be
determined in advance of the issuance thereof by the Trustees, by any duly
authorized committee thereof or by any of the President, the Vice Chairman,
any Executive Vice President or the Treasurer of the Trust; have an Initial
Dividend Period and an Initial Dividend Payment Date to be determined by the
Trustees of the Trust, by a duly authorized committee thereof or by any of
the President, the Vice Chairman, any Executive Vice President or the
Treasurer of the Trust; be redeemed (unless such share shall have been
otherwise redeemed pursuant to paragraph 4 of Part I of this Section 12.1 by
the Trust on a date to be determined by the Trustees of the Trust) at the
option of the Trust at a redemption price of $50,000 per share plus
accumulated but unpaid dividends to the date fixed for redemption (whether or
not earned or declared) plus the premium, if any, resulting from the
designation of a Premium Call Period; and have such other preferences,
limitations and relative voting rights, in addition to those required by
applicable law or set forth in the Trust's Declaration of Trust applicable to
preferred shares of the Trust, as are set forth in Part I and Part II of this
Section 12.1. Series A RP shall constitute a separate series of preferred
shares of the Trust, and each share of Series A RP shall be identical except
as provided in paragraph 4 of this Part I of this Section 12.1.
SERIES B: A series of 630 shares of preferred shares, without par
value, liquidation preference $50,000 per share plus accumulated but unpaid
dividends, if any, thereon (whether or 1not earned or declared), is hereby
designated "Remarketed Preferred Shares, Series B" and is referred to below,
as "Series B RP-Registered Trademark-". The Series A RP and Series B RP are
sometimes referred to below as the "RP-Registered Trademark-". Each share of
Series B RP shall be issued on a date to be determined by the Trustees of the
Trust or a duly authorized committee thereof; have such initial dividend rate
as shall be determined in advance of the issuance thereof by any of the
Trustees, by any duly authorized committee thereof or by any of the
President, the Vice Chairman, any Executive Vice (R)President or the
Treasurer of the Trust; have an Initial Dividend Period and Initial Dividend
Payment Dates to be determined by the Trustees of the Trust, by a duly
authorized committee thereof or by any of the President, the Vice Chairman,
any Executive Vice President or the Treasurer of the Trust; be redeemed
(unless such share shall have been otherwise redeemed pursuant to paragraph 4
of Part I of this Section 12.1 by the Trust on a date to be determined by the
Trustees of the Trust) at the option of the Trust at a redemption price of
$50,000 per share plus accumulated but unpaid dividends to the date fixed for
redemption (whether or not earned or declared) plus the premium, if any,
resulting from the designation of a Premium Call Period; and have such other
preferences, limitations and relative voting rights, in addition to those
required by applicable law or set forth in the Trust's Declaration of Trust
applicable to preferred shares of the Trust, as are set forth in Part I and
Part II of this Section 12.1. The Series B RP shall constitute a separate
series of preferred shares of the Trust, and each share of Series B RP shall
be identical except as provided in paragraph 4 of this Part I of this Section
12.1.
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3. DIVIDENDS. (a) The Holders of a particular series of RP as of
5:00 p.m., New York City time, on the date preceding the applicable Dividend
Payment Date, shall be entitled to receive, when, as and if declared by the
Trustees, out of funds legally available therefor, (i) cumulative dividends,
at the Applicable Dividend Rate, (ii) a Right (as defined in paragraph 3(k))
to receive an Additional Dividend or Additional Dividends in certain
circumstances, and (iii) any additional amounts as set forth in paragraph
3(m). Dividends on the shares of each series of RP so declared and payable
shall be paid in preference to and in priority over any dividends declared
and payable on the Common Shares.
(b) Dividends on each share of RP shall accumulate from its Date of
Original Issue and will be payable, when, as and if declared by the Trustees, on
each Dividend Payment Date applicable to such share of RP.
(c) Each declared dividend shall be payable on the applicable Dividend
Payment Date to the Holder or Holders of such shares of RP as set forth in
paragraph 3(a). Dividends on shares of RP in arrears with respect to any past
Dividend Payment Date may be declared and paid at any time, without reference to
any regular Dividend Payment Date, pro rata to the Holders of such shares as of
a date not exceeding five Business Days preceding the date of payment thereof as
may be fixed by the Trustees. Any dividend payment made on any share of RP shall
be first credited against the dividends accumulated but unpaid (whether or not
earned or declared) with respect to the earliest Dividend Payment Date on which
dividends were not paid.
(d) Neither Holders nor Beneficial Owners of shares of RP shall be
entitled to any dividends on the shares of RP, whether payable in cash,
property or stock, in excess of full cumulative dividends thereon (which
include any amounts actually due and payable pursuant to paragraph 3(k), 3(l)
or 3(m) of this Part I). Except as provided in paragraph 3(h) of this Part I,
neither Holders nor Beneficial Owners of shares of RP shall be entitled to
any interest, or other additional amount, on any dividend payment on any
share of RP which may be in arrears.
(e) Except as otherwise provided herein, the Applicable Dividend
Rate on each share of RP for each Dividend Period with respect to such share
shall be equal to the lower of the rate per annum that results from
implementation of the remarketing procedures described in Part II hereof and
the Maximum Dividend Rate.
(f) The amount of declared dividends for each share of RP payable on
each Dividend Payment Date of the Initial Dividend Period with respect to
Series A RP, each 28-day Dividend Period and each Short-Term Dividend Period
shall be computed by the Trust by multiplying the Applicable Dividend Rate in
effect with respect to dividends payable on such share on such Dividend
Payment Date by a fraction the numerator of which shall be the number of days
in such Dividend Period such share was outstanding from and including its
Date of Original Issue or the preceding Dividend Payment Date, as the case
may be, to and including the day preceding such Dividend Payment Date, and
the denominator of which shall be 365, then multiplying the amount so
obtained by $50,000 and rounding the amount so obtained to the nearest cent.
During the Initial Dividend Period with respect to Series B RP and any Long
Term Dividend Period, the amount of dividends per share payable on any
Dividend Payment Date shall be computed by dividing the Applicable Dividend
Rate for such Dividend Period by twelve, multiplying the amount so obtained
by $50,000, and rounding the amount so obtained to the nearest cent;
provided, however, that, if the number of days from and including the Date of
Original Issue or the preceding Dividend Payment Date, as the case may be, to
and including the day preceding such Dividend Payment Date is less than 30
and such days do not constitute a full calendar month, then the amount of
dividends per share payable on such Dividend Payment Date shall be computed
by multiplying the Applicable Dividend Rate for such Dividend Period by a
fraction, the numerator of which will be such number of days and the
denominator of which will be 360, multiplying the amount so obtained by
$50,000, and rounding the amount so obtained to the nearest cent.
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(g) No later than 12:00 noon, New York City time, on each Dividend
Payment Date, the Trust shall deposit in same-day funds with the Paying Agent
the full amount of any dividend declared and payable on such Dividend Payment
Date on any share of RP.
(h) The Applicable Dividend Rate for each Dividend Period commencing
during a Non-Payment Period shall be equal to the Non-Payment Period Rate and
any share of RP for which a Special Dividend Period would otherwise have
commenced on the first day of or during a Non-Payment Period shall have a 28-day
Dividend Period. Any amount of any dividend due on any Dividend Payment Date for
any shares of RP (if, prior to 12:00 noon, New York City time, on such Dividend
Payment Date, the Trust 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, New York City time, on the Business Day preceding
such Dividend Payment Date) or redemption price with respect to any shares of RP
not paid to Holders when due but paid to such Holders in the same form of funds
by 12:00 noon, New York City time, on any of the first three Business Days after
such Dividend Payment Date or due date, as the case may be, shall incur a late
charge to be paid therewith to such Holders and calculated 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. If the Trust fails to pay a dividend on a Dividend Payment Date or to
redeem any shares of RP on the date set for such redemption (otherwise than
because it is prevented from doing so by these By-laws or by applicable law),
the preceding sentence shall not apply and the Applicable Dividend Rate for the
Dividend Period commencing during the Non-Payment Period resulting from such
failure shall be the Non-Payment Period Rate. For the purposes of the foregoing
and paragraphs 3(g) and 4(g) of this Part 1, payment to a person in New York
Clearing House (next-day) funds on any Business Day at any time shall be
considered equivalent to payment to such person in same-day funds at the same
time on the next Business Day, and any payment made after 12:00 noon, New York
City time, on any Business Day shall be considered to have been made instead in
the same form of funds and to the same person before 12:00 noon, New York City
time, on the next Business Day.
(i) Except during a Non-Payment Period, by 12:00 noon, New York City
time, on the Remarketing Date in the Remarketing at the end of the Initial
Dividend Period applicable to a share of RP, and by 12:00 noon, New York City
time, on the Remarketing Date in the Remarketing at the end of each subsequent
Dividend Period applicable to a share of RP, the Beneficial Owner of such share
of RP may elect to tender, as provided in Part II hereof, such share or hold
such share for the next Dividend Period. If the Beneficial Owner of such share
of RP elects to hold such share, such Beneficial Owner shall hold such share of
RP for a 28-day Dividend Period, or a Special Dividend Period if the succeeding
Dividend Period with respect to such share has been designated by the Trustees
as a Special Dividend Period, provided that, if (i) there are no Remarketing
Agents, (ii) the Remarketing Agents are not required to conduct a Remarketing or
(iii) the Remarketing Agents are unable to remarket on the Remarketing Date all
shares of a series of RP tendered (or deemed tendered) to them at a price of
$50,000 per share, then the next Dividend Period for all shares of such series
of RP shall be a 28-day Dividend Period and the Applicable Dividend Rate
therefor shall be the Maximum Dividend Rate. If the Beneficial Owner of such
share of RP fails to elect to tender or hold such share by 12:00 noon, New York
City time, on such Remarketing Date, such Beneficial Owner shall continue to
hold such share at the Applicable Dividend Rate detetemined in such Remarketing
for the next Dividend Period for such share; provided that, (i) if there are no
Remarketing Agents, the Remarketing Agents are not required to conduct a
Remarketing or the Remarketing Agents are unable to remarket on the Remarketing
Date all shares of a series of RP tendered (or deemed tendered) to them at a
price of $50,000 per share, then the next Dividend Period for all shares of such
series of RP shall be a 28-day Dividend Period and the Applicable Dividend Rate
therefor shall be the Maximum Dividend Rate for a 28-day Dividend Period and
(ii) if such current Dividend Period is a Special Dividend Period of more than
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60 days or the succeeding Dividend Period has been designated by the Trustees as
a Special Dividend Period of more than 60 days, then such Beneficial Owner is
deemed to have elected to tender the shares. If the Remarketing Agents are
unable to remarket in such Remarketing all shares of a series of RP subject to
such Remarketing and tendered (or deemed tendered) to them at a price of $50,000
per share, the Beneficial owners of shares of such series of RP tendered (or
deemed tendered) but not purchased in such Remarketing shall hold such shares at
the Maximum Dividend Rate for a 28-day Dividend Period. If a share of RP is
tendered (or deemed tendered) and purchased in a Remarketing, the next Dividend
Period for such share shall be a 28-day Dividend Period or a Special Dividend
Period with respect to such share, as the case may be, at the Applicable
Dividend Rate therefor, except that, if the Remarketing Agents are unable to
remarket in such Remarketing at a price of $50,000 per share, all shares of a
series of RP tendered (or deemed tendered) to them, no purchaser in such
Remarketing shall be permitted to acquire shares having a Special Dividend
Period and the next Dividend Period for such share shall be a 28-day Dividend
Period and the Applicable Dividend Rate therefor shall be the applicable Maximum
Dividend Rate.
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(k) Simultaneously with the declaration of each dividend to a Holder at
the Applicable Dividend Rate determined as set forth in paragraph 3(a) above
(each, a "Paragraph 3(a) Dividend"), the Trustees shall also declare a dividend
to the same Holder consisting of one right (a "Right") to receive an Additional
Dividend in respect of such Paragraph 3(a) Dividend. If, after the close of its
fiscal year, the Trust characterizes all or a portion of a Paragraph 3(a)
Dividend paid on shares of a series of RP during such previous fiscal year as
consisting of net capital gain or other income subject to regular Federal income
tax, without having either given advance notice to the Remarketing Agents of the
inclusion of such taxable income in such Paragraph 3(a) Dividend prior to the
setting of the Applicable Dividend Rate for such Paragraph 3(a) Dividend or
included an additional amount in the Paragraph 3 (a) Dividend to offset the tax
effect of the inclusion therein of such taxable income, in each case as provided
in paragraph 3(m) hereof, and the Trust so characterizes all or a portion of the
Paragraph 3(a) Dividend solely because (i) the Trust has redeemed all or a
portion of the outstanding shares of such series of RP or the Trust has
liquidated and (ii) the Trust, in its judgment, believes it is required, in
order to comply with a published position of the Internal Revenue Service
concerning the allocation of different types of income between different classes
and series of shares, Rev. Rul. 89-81, 1989-1 C.B. 226, to allocate such taxable
income to that series of RP (the amount so characterized referred to herein as a
"Retroactive Taxable Allocation"), the Trust will, within 90 days after the end
of such fiscal year, provide notice of the Retroactive Taxable Allocation made
with respect to the Paragraph 3(a) Dividend to the Paying Agent and to each
Holder who received such Paragraph 3(a) Dividend and the corresponding Right, at
such Holder's address as the same appears or last appeared on the share books of
the Trust. The Trust will, within 30 days after such notice is given to the
Paying Agent, pay to the Paying Agent (who will then distribute to such holders
of Rights), out of funds legally available therefor, an amount equal to the
aggregate of the Additional Dividends payable in respect of such Retroactive
Taxable Allocation. The Trust may direct the Paying Agent to invest any such
available funds in Deposit Securities (provided that such Deposit Securities are
also rated at least P-1, MIG-1 or VMIG-1 by Moody's) provided that the proceeds
of any such investment will be available in The City of New York at the opening
of business on the payment date for such Additional Dividends. All such funds
(to the extent necessary to pay the full amount of such Additional Dividends)
shall be held in trust for the benefit of the holders of Rights. An Additional
Dividend or Additional Dividends declared in respect of a Right shall be paid to
the Holder that received such Right, whether or not such Holder continues to own
the shares of RP in respect of which such Right was issued. Rights shall be
nontransferable except by operation of law, and no purported transfer of a Right
will be recognized by the Trust. No certificates will be issued evidencing
Rights.
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An "Additional Dividend" in respect of any Paragraph 3(a) Dividend
means payment to a present or former Holder of a share of RP of an amount
which, giving effect to the Retroactive Taxable Allocation made with respect
to such Paragraph 3(a) Dividend, would cause such Holder's after-tax return
(taking into account both the Paragraph 3(a) Dividend and the Additional
Dividend and assuming such Holder is taxable at the Gross-Up Tax Rate) to be
equal to the after-tax return which the Holder would have realized if the
portion of the Paragraph 3(a) Dividend equal to the amount of the Retroactive
Taxable Allocation had been excludable from the gross income of such Holder
for Federal income tax purposes. Such Additional Dividend shall be calculated
(i) without consideration being given to the time value of money; (ii)
assuming that no Holder or former Holder of shares of RP is subject to the
Federal alternative minimum tax with respect to dividends received from the
Trust; and (iii) assuming that the Holder of the share of RP in respect of
which a Retroactive Taxable Allocation was made is taxable at the Gross-Up
Tax Rate. An Additional Dividend will not include an amount to compensate for
the fact that the Additional Dividend may be subject to state and local
taxes. The Gross-Up Tax Rate shall be equal to the sum of (i) the percentage
of the taxable income included in the Paragraph 3(a) Dividend that is taxable
for Federal income tax purposes as ordinary income, multiplied by the greater
of (A) the highest marginal Federal corporate income tax rate (without regard
to the phase-out of graduated rates) applicable to ordinary income and (B)
the highest marginal Federal individual income tax rate applicable to
ordinary income (without regard to any phase-out of personal exemptions or
any limitation on itemized deductions), and (ii) the percentage of the
taxable income included in the Paragraph 3(a) Dividend that is taxable
for Federal income tax purposes as long-term capital gain, multiplied by the
greater of (A) the highest marginal Federal corporate income tax rate
(without regard to the phase-out of graduated rates) applicable to long-term
capital gain and (B) the highest marginal Federal individual income tax rate
applicable to long-term capital gain (without regard to any phase-out of
personal exemptions or any limitation on itemized deductions) Except as
provided above, no Additional Dividend shall for any reason be payable in
respect of any Paragraph 3(a) Dividend previously paid to a Holder. In
particular, and without limiting the generality of the foregoing, no
Additional Dividend shall be payable as a result of any Internal Revenue
Service challenge to, among other things, the characterization of the RP as
equity, the Trust's method of allocating various types of income between
dividends paid on different classes or series of shares or between dividends
paid on the same class or series of shares, or the designations made by the
Trust relating to distributions made with respect to an earlier taxable year.
(1) The Trustees may in their sole discretion from time to time declare
a special dividend (each, a "special dividend") in an amount determined in their
sole judgment to be necessary or desirable to cause the Trust to comply with any
distribution requirements of the Code and thereby to avoid the incurrence by the
Trust of any income or excise tax under the Code, provided that the Trustees
shall not declare a special dividend if the declaration thereof causes the Trust
to fail to maintain the RP Basic Maintenance Amount or the 1940 Act RP Asset
Coverage. Any such special dividend shall be payable on a date specified by the
Trustees to Holders of record on a date specified by the Trustees consistent
with the By-laws. The Trust shall deposit with the Paying Agent sufficient funds
for the payment of any such special dividend not later than noon on the Business
Day immediately preceding the date on which such special dividend becomes
payable and shall give the Paying Agent irrevocable instructions to apply such
funds and, if applicable, the income and proceeds therefrom, to payment of such
special dividends. The Trust may direct the Paying Agent to invest any such
available funds in Deposit Securities (provided that such Deposit Securities are
also rated at least P-1, MIG-1 or VMIG-1 by Moody's) provided that the proceeds
of any such investment will be available in The City of New York at the opening
of business on the payment date for such special dividend. All such funds (to
the extent necessary to pay the full amount of such special dividend) shall be
held in trust for the benefit of the Holders.
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(m) Whenever the Trust intends to include any net capital gain or other
income subject to regular Federal income tax in a dividend on shares of any
series of RP solely because the Trust, in its judgment, believes it is required,
in order to comply with Rev. Rul. 89-81 described in paragraph 3(k), to allocate
taxable income to shares of such series of RP, the Trust will, unless it chooses
to follow the procedures described in the following sentence, notify the
Remarketing Agents of the amount to be so included at least five Business Days
prior to the Remarketing Date on which the Applicable Dividend Rate for such
dividend is to be established. Alternatively, if the Trust has not provided the
notice referred to in the preceding sentence, and nevertheless intends to
include income subject to regular Federal income tax in a dividend on shares of
a series of RP solely because the Trust, in its judgment, believes it is
required, in order to comply with such Rev. Rul. 89-81, to allocate such income
to shares of such series of RP, the Trust will (i) increase the dividend by an
amount such that the return to a Holder of that series of RP with respect to
such dividend (as so increased and after giving effect to tax at the Gross-Up
Tax Rate) equals the Applicable Dividend Rate and (ii) notify the Paying Agent
of the additional amount to be included in the dividend at least five Business
Days prior to the applicable Dividend Payment Date. The Trust will not be
required to notify any Holder of RP of the prospective inclusion of, or to
increase any dividend as a result of the inclusion of, any taxable income in any
dividend other than as provided in this paragraph 3(m) or in paragraph 3(k) of
this Part I.
4. REDEMPTION: SHARES OF RP SHALL BE REDEEMABLE BY THE TRUST AS PROVIDED BELOW:
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(a) To the extent permitted under the 1940 Act, upon giving a
Notice of Redemption, the Trust at its option may redeem shares of one or
more series of RP, in whole or in part, on the next succeeding scheduled
Dividend Payment Date applicable to those shares of RP called for redemption,
out of funds legally available therefor, at the Optional Redemption Price per
share; provided that no share of RP shall be subject to redemption pursuant
to this paragraph 4(a) on any Dividend Payment Date during (A) the Initial
Dividend Period with respect to such share or (B) a Non-Call Period to which
such share is subject; and provided further that the Trust shall effect no
redemption pursuant to this paragraph 4(a) if as a result of such redemption
the Trust shall have failed to maintain S&P Eligible Assets and Moody's
Eligible Assets with an aggregate Discounted Value at least equal to the RP
Basic Maintenance Amount or to maintain the 1940 Act RP Asset Coverage. The
Trust may not give a Notice of Redemption relating to an optional redemption
as described in paragraph 4(a) unless, at the time of giving such Notice of
Redemption, the Trust has available Deposit Securities with maturity or
tender dates not later than the day preceding the applicable redemption date
and having a Discounted Value not less than the amount due to Holders by
reason of the redemption of shares of RP on such redemption date.
(b) The Trust shall redeem, out of funds legally available therefor, at
the Mandatory Redemption Price per share, certain of the shares of RP, to the
extent permitted under the 1940 Act, if the Trust fails to maintain S&P Eligible
Assets and Moody's Eligible Assets with an aggregate Discounted Value at least
equal to the RP Basic Maintenance Amount or to maintain the 1940 Act RP Asset
Coverage and such failure is not cured on or before the RP Basic Maintenance
Cure Date or the 1940 Act Cure Date (each herein referred to as a "Cure Date"),
as the case may be. The number of shares of RP to be redeemed shall be equal to
the lesser of (i) the minimum number of shares of RP the redemption of which, if
deemed to have occurred immediately prior to the opening of business on the Cure
Date, together with all other Preferred Shares subject to redemption or
retirement, would result in the satisfaction of the RP Basic Maintenance Amount
or the 1940 Act RP Asset Coverage, as the case may be, on such Cure Date
(provided that, if there is no such minimum number of shares of RP and other
Preferred Shares the redemption of which would have such result, all shares of
RP then outstanding shall be redeemed), and (ii) the maximum number of shares of
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RP, together with all other Preferred Shares subject to redemption or
retirement, that can be redeemed out of funds expected to be legally available
therefor. In determining the number of shares of RP required to be redeemed in
accordance with the foregoing, the Trust shall allocate the number required to
be redeemed to satisfy the RP Basic Maintenance Amount or the 1940 Act RP Asset
Coverage, as the case may be, pro rata among shares of RP, Other RP and other
Preferred Shares subject to redemption provisions similar to those contained in
this paragraph 4(b). The Trust shall effect such redemption not later than 35
days after such Cure Date, except that if the Trust does not have funds legally
available for the redemption of all of the required number of shares of RP and
other Preferred Shares which are subject to mandatory redemption or the Trust
otherwise is unable to effect such redemption on or prior to 35 days after such
Cure Date, the Trust shall redeem those shares of RP and other Preferred Shares
which it was unable to redeem on the earliest practicable date on which it is
able to effect such redemption.
Any share of RP shall 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 RP are not available to satisfy the number of shares
required to be redeemed. In such event, such shares subject to a Non-Call Period
will 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.
(c) Subject to paragraph 4(d) of this Part I, if fewer than all the
outstanding shares of a series of RP are to be redeemed pursuant to this
paragraph 4, the number of such shares of such series of RP so to be redeemed
shall be a whole number of shares and shall be determined by the Trustees,
and the Trust shall give a Notice of Redemption as provided in paragraph 4(e)
of this Part I, provided that 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 shares of RP subject to a Non-Call Period will be subject to
mandatory redemption only on the basis described under paragraph 4(b) of this
Part I. Unless certificates representing shares of the relevant series of RP
are held by Holders other than the Securities Depository or its nominee, the
Securities Depository, upon receipt of such notice, shall determine by lot
(or, otherwise in accordance with procedures in effect at the time) 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, shall 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 RP whose
Agent Members have been selected by the Securities Depository and give notice
of such determination to the Remarketing Agents. In doing so, the Paying
Agent may determine that shares of RP shall be redeemed from the accounts of
some Beneficial Owners, which may include the Remarketing Agents, without
shares of RP being redeemed from the accounts of other Beneficial Owners.
(d) Notwithstanding paragraph 4(c) of this Part I, if any
certificates representing shares of a series of RP are held by Holders other
than the Securities Depository or its nominee, then the shares of such series
of RP to be redeemed shall be selected by the Paying Agent by lot.
-8-
(e) Any Notice of Redemption with respect to shares of a series of RP
shall be given (A) in the case of a redemption pursuant to paragraph 4(a) of
this Part I, by the Trust to the Paying Agent, the Securities Depository (and
any other Holder) and the Remarketing Agents, by telephone, not later than 1:00
p.m. New York City time (and later confirmed in writing) not less than 20 nor
more than 30 days prior to the earliest date upon which any such redemption may
occur and (B) in the case of a mandatory redemption pursuant to paragraph 4(b)
of this Part I, by the Trust to the Paying Agent, the Securities Depository (and
any other Holder) and the Remarketing Agents, by telephone, not later than 1:00
p.m., New York City time (and later confirmed in writing) not less than 20 nor
more than 30 days prior to the redemption date established by the Trustees and
specified in such notice. In the case of a partial redemption of the shares of a
series of RP, the Paying Agent shall use its 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 on which the Paying
Agent determines the shares to be redeemed, as described in paragraph 4(c) of
this Part I (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 Trust).
Such telephonic notice shall be confirmed promptly in writing to the Remarketing
Agents, the Securities Depository and 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 determines the shares to
be redeemed. In the case of a redemption in whole of the shares of RP, the
Paying Agent shall use its reasonable efforts to provide telephonic notice to
each Beneficial Owner of shares of a series of RP called for redemption not
later than the close of business on the Business Day immediately following the
day on which it receives a Notice of Redemption from the Trust. Such telephonic
notice shall be confirmed promptly in writing to each Beneficial Owner of shares
of RP called for redemption, the Remarketing Agents and the Securities
Depository 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.
(f) Every Notice of Redemption and other redemption notice shall
state: (i) the redemption date; (ii) the number of shares of each series of
RP to be redeemed; (iii) the redemption price; (iv) that dividends on the
shares of RP to be redeemed shall cease to accumulate as of such redemption
date; and (v) the provision of the Declaration of Trust or the By-laws
pursuant to which such shares are being redeemed. In addition, notice of
redemption given to a Beneficial Owner by the Paying Agent shall state the
CUSIP number, 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 the mailing thereof shall affect the validity
of the redemption proceedings, except as required by applicable law. The
Paying Agent shall use its reasonable efforts to cause the publication of a
Notice of Redemption in an Authorized Newspaper within two Business Days of
the date of the Notice of Redemption, but failure so to publish such
notification shall not affect the validity or effectiveness of any such
redemption proceedings.
(g) On any redemption date, the Trust shall deposit, irrevocably in
trust, in same-day funds, with the Paying Agent, by 12:00 noon, New York City
time, the Optional Redemption Price or Mandatory Redemption Price, as the
case may be, for each share of RP called for redemption.
-9-
(h) In connection with any redemption, upon the giving of a Notice of
Redemption and the deposit of the funds necessary for such redemption with the
Paying Agent in accordance with this paragraph 4, shares of RP so called for
redemption shall no longer be deemed outstanding for any purpose and all rights
of the Holders of shares of RP so called for redemption shall cease and
terminate, except the right of the Holders thereof to receive the Optional
Redemption Price or the Mandatory Redemption Price, as the case may be, but
without any interest or other additional amount (except as provided in paragraph
3(k) or 3(l) of this Part I). The Trust shall be entitled to receive from the
Paying Agent, promptly after the date fixed for redemption, any cash deposited
with the Paying Agent as aforesaid in excess of the sum of (i) the aggregate
redemption price of the shares of RP called for redemption on such date and (ii)
all other amounts to which Holders of shares of RP called for redemption may be
entitled. The Trust shall be entitled to receive, from time to time after the
date fixed for redemption, any interest on any funds deposited in respect of
such redemption. Any funds so deposited with the Paying Agent which are
unclaimed at the end of ninety days from such redemption date shall, to the
extent permitted by law, be repaid to the Trust, after which time the Holders of
shares of RP so called for redemption shall look only to the Trust for payment
of the redemption price and all other amounts to which they may be entitled. If
any such unclaimed funds are repaid to the Trust, the Trust shall invest such
unclaimed funds in Deposit Securities with a maturity of no more than one
Business Day.
(i) To the extent that any redemption for which Notice of Redemption
has been given is not made by reason of the absence of legally available
funds therefor, such redemption shall be made as soon as practicable to the
extent such funds become available. Failure to redeem shares of RP shall be
deemed to exist at any time after the date specified for redemption in a
Notice of Redemption when the Trust shall have failed, for any reason
whatsoever, to deposit funds with the Paying Agent pursuant to paragraph 4(g)
of this Part I with respect to any shares for which such Notice of Redemption
has been given.
(j) Notwithstanding any of the foregoing provisions of this
paragraph 4, the Remarketing Agents may, in their sole discretion, modify the
procedures set forth above with respect to notification of redemption,
provided that any such modification does not adversely affect any Holder of
shares of the relevant series of RP or materially alter the obligations of
the Paying Agent; and further provided that the Trust receives written
confirmation from S&P that any such modification would not impair the ratings
then assigned by S&P to shares of RP.
(k) In effecting any redemption pursuant to this paragraph 4, the
Trust shall use all reasonable efforts to satisfy all applicable procedural
conditions precedent to effecting such redemption under the 1940 Act and
Massachusetts law.
(l) Notwithstanding the foregoing, (i) no share of RP may be
redeemed pursuant to paragraph 4(a) of this Part I unless the full amount of
accumulated but unpaid dividends to the date fixed for redemption for each
such share of RP called for redemption shall have been declared, and (ii) no
share of RP may be redeemed unless all outstanding shares of RP are
simultaneously redeemed, nor may any shares of RP be purchased or otherwise
acquired by the Trust except in accordance with a purchase offer made on
substantially equivalent terms by the Trust for all outstanding shares of RP,
unless, in each such instance, dividends (other than dividends, if any, to be
paid pursuant to paragraph 3(k) or 3(l) of this Part I which have not yet
become due and payable) on all outstanding shares of RP through the most
recent Dividend Payment Date shall have been paid or declared and sufficient
funds for the payment thereof deposited with the Paying Agent.
* * *
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5. LIQUIDATION. (a) Upon a liquidation, dissolution or winding up
of the affairs of the Trust, whether voluntary or involuntary, the Holders
shall be entitled, whether from capital or surplus, before any assets of the
Trust shall be distributed among or paid over to holders of Common Shares or
any other class or series of shares of the Trust ranking junior to the RP as
to liquidation payments, to be paid the amount of $50,000 per share of RP,
plus an amount equal to all accumulated but unpaid dividends thereon (whether
or not earned or declared) to but excluding the date of final distribution,
in same-day funds. After any such payment, the Holders shall not be entitled
to any further participation in any distribution of assets of the Trust,
except as provided in paragraph 3(k) of this Part I.
(b) If, upon any such liquidation, dissolution or winding up of the
Trust, the assets of the Trust shall be insufficient to make such full payments
to the Holders and the holders of any Preferred Shares ranking as to
liquidation, dissolution or winding up on a parity with the RP (including the
Other RP), then such assets shall be distributed among the Holders and such
parity holders ratably in accordance with the respective amounts which would be
payable on such shares of RP and any other such Preferred Shares if all amounts
thereof were paid in full.
* * *
6. VOTING RIGHTS. (a) GENERAL. Except as otherwise provided in the
Declaration of Trust or By-laws, each Holder of shares of RP and each record
holder of Common Shares shall be entitled to one vote for each share held on
each matter submitted to a vote of shareholders of the Trust, and the holders
of outstanding Preferred Shares, including RP, and of Common Shares shall
vote together as a single class; provided that, at any meeting of the
shareholders of the Trust held for the election of Trustees, the holders of
Preferred Shares, including RP, present in person or represented by proxy at
said meeting, shall be entitled, as a class, to the exclusion of the holders
of all other securities and classes of capital shares of the Trust, to elect
two Trustees of the Trust, each Preferred Share, including RP, entitling the
holder thereof to one vote. Subject to paragraph 6 (b) hereof, the holders of
outstanding Common Shares and Preferred Shares, including RP, voting as a
single class, shall elect the balance of the Trustees.
(b) RIGHT TO ELECT MAJORITY OF TRUSTEES. During any period in which any
one or more of the conditions described below shall exist (such period being
referred to herein as a "Voting Period"), the number of Trustees shall be
automatically increased by the smallest number that, when added to the two
Trustees elected exclusively by the holders of Preferred Shares, would
constitute a majority of the Trustees as so increased by such smallest number;
and the holders of Preferred Shares shall be entitled, voting as a class on a
one-vote-per-share basis (to the exclusion of the holders of all other
securities and classes of capital shares of the Trust), to elect such smallest
number of additional Trustees, together with the two Trustees that such holders
are in any event entitled to elect. A Voting Period shall commence:
(i) if at the close of business on any Dividend Payment
Date accumulated dividends (whether or not earned or declared, and
whether or not funds are then legally available in an amount sufficient
therefor) on the outstanding shares of RP equal to at least two full
years' dividends shall be due and unpaid and sufficient cash or
securities shall not have been deposited with the Paying Agent for the
payment of such accumulated dividends; or
(ii) if at any time holders of any Preferred Shares other
than the RP are entitled to elect a majority of the Trustees of the
Trust.
Upon the termination of a Voting Period, the voting rights described
in this paragraph 6(b) shall cease, subject always, however, to the
revesting of such voting rights in the Holders upon the further
occurrence of any of the events described in this paragraph 6(b). A
Voting Period shall terminate when all dividends in arrears shall have
been paid as otherwise provided for.
-11-
(c) OTHER ACTIONS. Except as otherwise provided herein, so long as any
shares of RP are outstanding, the Trust shall not, without the affirmative vote
or consent of the Holders of at least a majority of the shares of RP outstanding
at the time, in person or by proxy, either in writing or at a meeting (voting
separately as one class): (i) authorize, create or issue, or increase or
decrease the authorized or issued amount of, any class or series of shares of
beneficial interest ranking prior to or on a parity with the RP with respect to
payment of dividends or the distribution of assets on liquidation, or increase
or decrease the number of authorized Preferred Shares; (ii) amend, alter or
repeal the provisions of the Declaration of Trust and the By-laws, including
this Section 12.1, whether by merger, consolidation or otherwise, so as to
affect materially and adversely any preference, right or power of such shares of
RP or the Holders thereof; or (iii) take any other action (including without
limitation bankruptcy proceedings) which pursuant to Section 18 (a) (2) (D) of
the 1940 Act requires such approval by the Holders; provided that (i) the
issuance of not more than the 1,260 Preferred Shares presently authorized and
(ii) the creation and issuance of series of Preferred Shares ranking junior to
the RP with respect to payment of dividends and the distribution of assets on
liquidation, will not be deemed to affect such preferences, rights or powers
unless such issuance would, at the time thereof, cause the Trust not to satisfy
the 1940 Act RP Asset Coverage or the RP Basic Maintenance Amount. To the extent
permitted under the 1940 Act, the Trust shall not take any action which may
adversely affect the rights of a Holder of shares of a series of RP differently
than a Holder of shares of another series of RP, without the affirmative vote or
consent of the Holders of at least a majority of the shares of RP of such
potentially affected series outstanding at the time, in person or by proxy,
either in writing or at a meeting (voting separately as a class) . To the extent
that such an action may affect the rights of Holders of shares of series of RP
in, a substantially similar manner, the Holders of shares of such series shall
vote together as one class.
The foregoing voting provisions shall not apply with respect to shares
of RP if, at or prior to the time when a vote is required, such shares of RP
shall have been (i) redeemed or (ii) called for redemption and sufficient funds
(in the form of cash or Municipal Bonds rated at least P-1, MIG-1 or VMIG-1 by
Moody's and which mature prior to the redemption date) shall have been deposited
in trust to effect such redemption.
Notwithstanding the foregoing, the Trustees may, without the vote or
consent of the Holders of RP, from time to time amend, alter or repeal any or
all of the provisions of paragraphs 12(a), 12(b), 12(c), 13(a) and 13(b) of this
Part I, as well as any or all of the definitions of the terms listed below, and
any such amendment, alteration or repeal will be deemed not to affect the
preferences, rights or powers of shares of RP or the Holders thereof, provided
the Trustees receive written confirmation from Moody's, in the case of any such
action with respect to paragraphs 12(b), 12(c), 13(a) and 13(b), or from S&P, in
the case of any such action with respect to paragraphs 12(a), 13(a) and 13(b),
or from both Moody's and S&P, in the case of any such action with respect to the
definitions of the terms listed below, that any such amendment, alteration or
repeal would not impair the ratings then assigned to shares of RP by the rating
agency providing such confirmation:
Accountant's Confirmation 1940 Act Cure Date
Anticipation Notes 1940 Act RP Asset Coverage
Certificate of Minimum Municipal Bonds
Liquidity Municipal Index
Closing Transactions Non-Payment Period Rate.
Deposit Securities Other Issues
Discounted Value Quarterly Valuation Date
Dividend Coverage Amount Receivables for Municipal
Dividend Coverage Assets Bonds Sold
Forward Commitments RP Basic Maintenance Amount
Independent Accountant RP Basic Maintenance Cure Date
Initial Margin RP Basic Maintenance Report
Market Value S&P Discount Factor
Maximum Potential Additional S&P Eligible Asset
Dividend Liability S&P Hedging Transaction
Minimum Liquidity Level S&P Exposure Period
Moody's Discount Factor S&P Volatility Factor
Moody's Eligible Asset Treasury Bonds
Moody's Hedging Transaction Valuation Date
Moody's Exposure Period Variation Margin
Moody's Volatility Factor
-12-
(d) VOTING PROCEDURES. (i) As soon as practicable after the accrual of
any right of the holders of shares of Preferred Shares to elect additional
Trustees as described in paragraph 6 (b) above, the Trust shall notify the
Paying Agent and the Paying Agent shall call a special meeting of such holders,
by mailing a notice of such special meeting to such holders, such meeting to be
held not less than 10 nor more than 20 days after the date of mailing of such
notice. If the Trust fails to send such notice to the Paying Agent or if the
Paying Agent does not call such a special meeting, it may be called by any such
holder on like notice. The record date for determining the holders entitled to
notice of and to vote at such special meeting shall be the close of business on
the fifth Business Day preceding the day on which such notice is mailed. At any
such special meeting and at each meeting held during a Voting Period, such
holders, voting together as a class (to the exclusion of the holders of all
other securities and classes of capital shares of the Trust), shall be entitled
to elect the number of Trustees prescribed in paragraph 6(b) above on a
one-vote-per-share basis. At any such meeting or adjournment thereof in the
absence of a quorum, a majority of such holders present in person or by proxy
shall have the power to adjourn the meeting without notice, other than an
announcement at the meeting, until a quorum is present.
(ii) For purposes of determining any rights of the Holders to vote
on any matter, whether such right is created by this Section 12.1, by the
other provisions of the Declaration of Trust or the By-laws, by statute or
otherwise, no Holder shall be entitled to vote and no share of RP shall be
deemed to be "outstanding" for the purpose of voting or determining the
number of shares required to constitute a quorum if, prior to or concurrently
with the time of determination of shares entitled to vote or shares deemed
outstanding for quorum purposes, as the case may be, sufficient funds (in the
form of cash or Municipal Bonds rated at least P-1, MIG-1 or VMIG-1 by
Moody's and which mature prior to the redemption date) for the redemption of
such shares have been deposited in trust with the Paying Agent for that
purpose and the requisite Notice of Redemption with respect to such shares
shall have been given as provided in paragraph 4 of this Part I. No share of
RP held by the Trust or any affiliate of the Trust shall have any voting
rights or be deemed to be outstanding for voting purposes.
(iii) The terms of office of all persons who are Trustees of the
Trust at the time of a special meeting of Holders and holders of other
Preferred Shares to elect Trustees shall continue, notwithstanding the
election at such meeting by the Holders and such other holders of the number
of Trustees that they are entitled to elect, and the persons so elected by
the Holders and such other holders, together with the two incumbent Trustees
elected by the Holders and such other holders of Preferred Shares and the
remaining incumbent Trustees elected by the holders of the Common Shares and
Preferred Shares, shall constitute the duly elected Trustees of the Trust.
(iv) Simultaneously with the expiration of a Voting Period, the
terms of office of the additional Trustees elected by the Holders and holders
of other Preferred Shares pursuant to paragraph 6(b) above shall terminate,
the remaining Trustees shall constitute the Trustees of the Trust and the
voting rights of the Holders and such other holders to elect additional
Trustees pursuant to paragraph 6 (b) above shall cease, subject to the
provisions of the last sentence of paragraph 6(b).
(e) EXCLUSIVE REMEDY. Unless otherwise required by law, the Holders of
shares of RP shall not have any relative rights or preferences or other special
rights other than those specifically set forth herein. The Holders of shares of
RP shall have no preemptive rights or rights to cumulative voting. In the event
that the Trust fails to pay any dividends on the shares of RP, the exclusive
remedy of the Holders shall be the right to vote for Trustees pursuant to the
provisions of this paragraph 6. In no event shall the Holders of shares of RP
have any right to sue for, or bring a proceeding with respect to, such dividends
or redemptions or damages for the failure to receive any dividends or the
proceeds of a redemption.
* * *
-13-
10. RESTRICTIONS ON CERTAIN DISTRIBUTIONS. For so long as any share
of RP is outstanding, (a) the Trust shall not declare, pay or set apart for
payment any dividend or other distribution (other than a dividend or
distribution paid in shares of, or options, warrants or rights to subscribe
for or purchase, Common Shares or other shares, if any, ranking junior to the
shares of RP as to dividends and upon liquidation) in respect of the Common
Shares or any other shares of the Trust ranking junior to or on a parity with
the shares of RP as to dividends or upon liquidation, or call for redemption,
redeem, purchase or otherwise acquire for consideration any Common Shares or
any other such junior shares or parity shares (except by conversion into or
exchange for shares of the Trust ranking junior to the shares of RP as to
dividends and upon liquidation), unless (i) full cumulative dividends on
shares of RP and Other RP through the most recent Dividend Payment Date shall
have been paid or shall have been declared and sufficient funds for the
payment thereof deposited with the Paying Agent and (ii) the Trust has
redeemed the full number of shares of RP and Other RP required to be redeemed
by any provision for mandatory redemption pertaining thereto, and (b) the
Trust will not declare, pay or set apart for payment any dividend or other
distribution (other than a dividend or distribution paid in shares of, or
options, warrants or rights to subscribe for or purchase, Common Shares or
other shares, if any, ranking junior to shares of RP as to dividends and upon
liquidation) in respect of Common Shares or any other shares of the Trust
ranking junior to or on a parity with shares of RP as to dividends or upon
liquidation, or call for redemption, redeem, purchase or otherwise acquire
for consideration any Common Shares or any other such junior or parity shares
(except by conversion into or exchange for shares of the Trust ranking junior
to shares of RP as to dividends and upon liquidation), unless (i) immediately
after such transaction the aggregate Discounted Value of Moody's Eligible
Assets and S&P Eligible Assets would at least equal the RP Basic Maintenance
Amount and (ii) the Trust meets the applicable requirements of Section
18(a)(2)(B) of the 1940 Act.
11. NOTICE. All notices or communications, unless otherwise
specified in these By-laws, shall be sufficiently given if in writing and
delivered in person or mailed by first-class mail, postage prepaid. Notice
shall be deemed given on the earlier of the date received or the date seven
days after which such notice is mailed.
* * *
PART II
REMARKETING PROCEDURES
* * *
2. PROCEDURE FOR TENDERING. (a) Each share of a series of RP is subject
to Tender and Dividend Reset at the end of each Dividend Period for such series
and may be tendered in the Remarketing which commences on the Remarketing
Date immediately prior to the end of the current Dividend Period. By 9:00
a.m., New York City time, on each such Remarketing Date, the Remarketing
Agents shall, after canvassing the market and considering prevailing market
conditions at the time for shares of RP and similar securities, provide
Beneficial Owners non-binding indications of the Applicable Dividend Rate for
the next succeeding 28-day Dividend Period or, if applicable, a Special
Dividend Period; provided that, if the Trust has designated the next Dividend
Period as a Special Dividend Period, the Remarketing Agents will provide to
Beneficial Owners a non-binding indication only of the Applicable Dividend
Rate for such Special Dividend Period. The actual Applicable Dividend Rate
for such Dividend Period may be greater than or less than the rate per annum
indicated in such non-binding indications (but not greater than the
applicable Maximum Dividend Rate). By 12:00 noon, New York City time, on such
Remarketing Date, each Beneficial Owner of a share of the relevant series of
RP must notify a Remarketing Agent of its desire, on a share-by-share basis,
either to tender such share of RP at a price of $50,000 per share or to
continue to hold such share for the next 28-day Dividend Period or, if
-14-
applicable, the next Special Dividend Period. Beneficial Owners who do not
provide such notice shall be deemed to have elected (i) to hold all their
shares of RP if each of the current Dividend Period and succeeding Dividend
Period is a 28-day Dividend Period or a Special Dividend Period of 60 days or
less, and (ii) to tender all their shares of RP if the current Dividend
Period or succeeding Dividend Period is a Special Dividend Period of more
than 60 days. Any notice given to a Remarketing Agent to tender or hold
shares for a particular Dividend Period shall be irrevocable and shall not be
conditioned upon the level at which the Applicable Dividend Rate is
established. A Remarketing Agent may, in its sole discretion, (i) at the
request of a Beneficial Owner that has tendered one or more shares to such
Remarketing Agent, waive such Beneficial Owner's tender, and thereby enable
such Beneficial Owner to continue to hold the share or shares for the next
28-day Dividend Period or, if applicable, a designated Special Dividend
Period, as agreed to by such Beneficial Owner and such Remarketing Agent at
such time, so long as such tendering Beneficial Owner has indicated to
such Remarketing Agent that it would accept the new Applicable Dividend Rate
for such Dividend Period, such waiver to be contingent upon the Remarketing
Agents' ability to remarket all shares of RP tendered in such Remarketing,
and (ii) at the request of a Beneficial Owner that has elected to hold one or
more of its shares of RP, waive such Beneficial Owner's election with respect
thereto, such waiver to be contingent upon the Remarketing Agents' ability to
remarket all shares of RP tendered in such Remarketing.
(b) The ability of each Beneficial Owner to tender shares of RP in a
Remarketing shall be limited to the extent that (i) the Remarketing Agents
conduct a Remarketing pursuant to the terms of the Remarketing Agreement,
(ii) shares tendered have not been called for redemption and (iii) the
Remarketing Agents are able to find a purchaser or purchasers for tendered
shares of RP at an Applicable Dividend Rate for the next applicable Dividend
Period that is not in excess of the Maximum Dividend Rate for such Dividend
Period.
(3) DETERMINATION OF APPLICABLE DIVIDEND RATES.
* * *
(d) The Applicable Dividend Rate shall be determined as aforesaid by
the Remarketing Agents in their sole discretion (except as otherwise provided in
this Section 12.1 with respect to an Applicable Dividend Rate that shall be the
Non-Payment Period Rate or the Maximum Dividend Rate) and shall be conclusive
and binding on Holders and Beneficial Owners.
(e) Except during a Non-Payment Period, the Applicable Dividend Rate
for any Dividend Period shall not be more than the applicable Maximum
Dividend Rate.
(4) ALLOCATION OF SHARES; FAILURE TO REMARKET AT $50,000 PER SHARE.
(a) If the Remarketing Agents are unable to remarket by 3:00 p.m., New York
City time, on a Remarketing Date all shares of RP tendered (or deemed
tendered) to them in the related Remarketing at a price of $50,000 per share,
(i) each Beneficial Owner that tendered or was deemed to have tendered shares
of RP for sale shall sell a number of shares of RP on a pro rata basis, to
the extent practicable, or by lot, as determined by the Remarketing Agents in
their sole discretion, based on the number of orders to purchase shares of RP
in such Remarketing, and (ii) the Applicable Dividend Rate for the next
Dividend Period for such series, which shall be a 28-day Dividend Period,
shall be the Maximum Dividend Rate for such 28-day Dividend Period.
-15-
(b) If the allocation procedures described above would result in the
sale of a fraction of a share of RP, the Remarketing Agents shall, in their
sole discretion, round up or down the number of shares of RP sold by each
Beneficial Owner on the applicable Remarketing Date so that each share sold
by a Beneficial Owner shall be a whole share of RP, and the total number of
shares sold equals the total number of shares purchased on such Remarketing
Date.
(5) NOTIFICATION OF RESULTS; SETTLEMENT. (a) By telephone at
approximately 3:30 p.m., New York City time, on each Remarketing Date, the
Remarketing Agents shall advise each Beneficial Owner of tendered shares and
each purchaser thereof (or the Agent Member thereof) (i) of the number of
shares such Beneficial owner or purchaser is to sell or purchase and (ii) to
give instructions to its Agent Member to deliver such shares against payment
therefor or to pay the purchase price against delivery as appropriate. The
Remarketing Agents will also advise each Beneficial Owner or purchaser that
is to continue to hold, or to purchase, shares with a Dividend Period
beginning on the Business Day following such Remarketing Date of the
Applicable Dividend Rate for such shares.
(b) In accordance with the Securities Depository's normal procedures,
on the Settlement Date, the transactions described above with respect to each
share of RP shall be executed through the Securities Depository, if the
Securities Depository or its nominee holds or is to hold the certificate
relating to the shares to be purchased, and the accounts of the respective Agent
Members of the Securities Depository shall be debited and credited and shares
delivered by book entry as necessary to effect the purchases and sales of shares
of RP in the related Remarketing. Purchasers of shares of RP shall make payment
to the Paying Agent in same-day funds against delivery to such purchasers or
their nominees of one or more certificates representing shares of RP, or, if the
Securities Depository or its nominee holds or is to hold the certificate
relating to the shares to be purchased, through their Agent Members in same-day
funds to the Securities Depository against delivery by book entry of shares of
RP through their Agent Members. The Securities Depository shall make payment in
accordance with its normal procedures.
(c) If any Beneficial Owner selling shares of RP in a Remarketing
fails to deliver such shares, the Agent Member of such selling Beneficial
Owner and of any other person that was to have purchased shares of RP in such
Remarketing may deliver to any such other person a number of whole shares of
RP that is less than the number of shares that otherwise was to be purchased
by such person. In such event, the number of shares of RP to be so delivered
shall be determined by such Agent Member. Delivery of such lesser number of
shares of RP shall constitute good delivery.
-16-
(d) The Remarketing Agents, the Paying Agent and the Securities
Depository each will use its reasonable commercial efforts to meet the timing
requirements set forth in paragraphs (a) and (b) above; provided that, in the
event that there is a delay in the occurrence of any delivery or other event
connected with a Remarketing, the Remarketing Agents, the Paying Agent and
the Securities Depository each will use its reasonable commercial efforts to
accommodate such delivery in furtherance of the Remarketing.
(e) Notwithstanding any of the foregoing provisions of this
paragraph 5, the Remarketing Agents may, in their sole discretion, modify the
settlement procedures set forth above with respect to any Remarketing,
provided any such modification does not adversely affect the Beneficial
Owners or the Holders of RP or the Trust.
(f) Neither the Trust, the Paying Agent nor any of the Remarketing
Agents shall be obligated in any case to provide funds to make payment to a
Beneficial Owner upon such Beneficial Owner's tender of its shares of RP in a
Remarketing, unless, in each case, such shares of RP were acquired for the
account of the Trust, the Paying Agent or any of the Remarketing Agents.
* * *
(8) TRANSFERS. Unless the Trust has elected, during a Non-Payment
Period, to waive this requirement, ownership of shares of RP will be
maintained in book entry form by the Securities Depository, for the account
of a designated Agent Member which, in turn, shall maintain records of such
purchaser's beneficial ownership.
(9) MISCELLANEOUS.
* * *
(b) Notwithstanding any provision of these By-laws, (i) no
Remarketing Agent, Paying Agent, Securities Depository or Agent Member shall
have any obligation in respect of any person having any interest in any share
of RP other than the Beneficial Owner thereof, and the Paying Agent shall
have no obligation to record any transfer of beneficial ownership in any
share unless and until it shall have received proper notice and evidence of
such transfer and the right of the transferee in accordance with its
procedures in effect from time to time, and (ii) the record books of the
Trust as kept by the Paying Agent shall be conclusive as to who is the Holder
of any share of RP and as to the number of shares of RP held from time to
time by any Holder, and the Trust shall have no obligation in respect of any
share of RP to any person other than such Holder.
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***
ARTICLE 13
Advance Notice of Shareholder Nominees for Trustee and
Proposals to Fix the Number of Trustees
13.1. Advance Notice of Shareholder Nominations of Trustees and Proposals
to Fix the Number of Trustees. Only persons who are nominated in accordance with
the following procedures shall be eligible for election as Trustees, and no
proposal to fix the number of Trustees shall be brought before a meeting of
shareholders or otherwise transacted unless in accordance with the following
procedures, except as may be otherwise provided in the Bylaws with respect to
the right of holders of preferred shares, if any, of the Trust to nominate and
elect a specified number of Trustees in certain circumstances.
(a) Meetings of Shareholders.
(1) Nominations of persons for election to the Board of
Trustees and proposals to fix the number of Trustees may be made at an
annual meeting of shareholders or at a special meeting of shareholders in
lieu of an annual meeting only (i) pursuant to the notice of meeting given
by or at the direction of the Trustees pursuant to Article V, Section 2 of
the Declaration of Trust, (ii) by or at the direction of the Trustees (or
any duly authorized committee thereof) or the Chairman of the Trustees or
(iii) by any shareholder of the Trust who was a shareholder of record at
the time the notice provided for in this Section 13.1 is delivered to the
Clerk of the Trust, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in subparagraph (2) of this
paragraph (a) of this Section 13.1.
(2) For such nominations or proposals to be properly brought
before a meeting by a shareholder pursuant to clause (iii) of paragraph
(a) of this Section 13.1, the shareholder must have given timely notice
thereof in writing to the Clerk of the Trust in accordance with paragraph
(b) of this Section 13.1. The shareholder's notice shall contain, at a
minimum, the information set forth in paragraph (c) of this Section 13.1.
(b) Timely Notice.
(1) Annual Meeting. To be timely, a shareholder's notice
required by subparagraph (2) of paragraph (a) of this Section 13.1 in
respect of an annual meeting shall be delivered to the Clerk at the
principal executive offices of the Trust not less than sixty (60) nor more
than ninety (90) days prior to the anniversary date of the immediately
preceding annual meeting; provided, however, that with respect to the
annual meeting to be held in the calendar year 2001, notice by the
shareholder in order to be timely must be so received not less than thirty
(30) days prior to such anniversary date; provided further, however, if
and only if the annual meeting is not scheduled to be held on a date that
is within thirty (30) days before or after such anniversary date, notice
by
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the shareholder in order to be timely must be so received no later than
the close of business on the tenth (10th) day following the earlier of the
date on which notice of the date of the annual meeting was mailed and the
date on which public announcement of the date of the annual meeting was
first made.
(2) Special Meeting in Lieu of Annual Meeting. To be timely, a
shareholder's notice required by subparagraph (2) of paragraph (a) of this
Section 13.1 in respect of a special meeting in lieu of an annual meeting
shall be delivered to the Clerk at the principal executive offices of the
Trust not later than the close of business on the tenth (10th) day
following the date on which public announcement was first made of the date
of the special meeting.
(3) General. In no event shall an adjournment or postponement
(or a public announcement thereof) of a meeting of shareholders commence a
new time period (or extend any time period) for the giving of a
shareholder's notice as described in this paragraph (b) of this Section
13.1.
(c) Content of Shareholder's Notice.
(1) Any shareholder's notice required by this Section 13.1
shall set forth as to each person, if any, whom the shareholder proposes
to nominate for election or re-election as a Trustee (i) the person's
name, age, date of birth, business address, residence address and
nationality; (ii) any other information regarding the person required by
each of paragraphs (a), (d), (e) and (f) of Item 401 of Regulation S-K and
paragraph (b) of Item 22 of Rule 14a-101 (Schedule 14A) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); (iii)
any other information regarding the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitation of proxies for election of Trustees or
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder; (iv) whether the shareholder believes
the person is or will be an "interested person" of the Trust (as defined
in the Investment Company Act of 1940, as amended) and, if not an
"interested person," information regarding the person that will be
sufficient for the Trust to make such determination; (v) the written
consent of the person to being named as a nominee and to serve as a
Trustee if elected and (vi) the class or series and number of all shares
of beneficial interest of the Trust owned beneficially or of record by the
person. Any shareholder's notice required by this Section 13.1 in respect
of a proposal to fix the number of Trustees shall also set forth a
description and the text of the proposal, which description and text shall
state a fixed number of Trustees that otherwise complies with the Bylaws
and the Declaration of Trust.
(2) Such shareholder's notice further shall set forth as to
the shareholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination is made (i) the name and address of the
shareholder and such beneficial owner, as they appear on the Trust's
books; (ii) the class or series and number of all shares of beneficial
interest of the Trust owned beneficially and of record by the shareholder
and such beneficial owner; (iii) a description of all arrangements or
understandings between the shareholder and each proposed nominee and any
other
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person or persons (including their names) pursuant to which the
nomination(s) are to be made by the shareholder; (iv) a representation
that the shareholder intends to appear in person or by proxy at the
meeting to, as the case may be, (A) nominate each person named in its
notice and (B) make the proposal to fix the number of Trustees as stated
in its notice; and (v) any other information relating to the shareholder
that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitation of proxies for
election of Trustees or directors pursuant to Section 14 of the Exchange
Act and the rules and regulations promulgated thereunder.
(3) The Trustees may require any proposed nominee to furnish
such other information as they may reasonably require to determine the
eligibility of such proposed nominee to serve as a Trustee.
(d) Authority to Determine Compliance with Procedures. The
person presiding at any meeting of shareholders, in addition to making any
other determinations that may be appropriate to the conduct of the
meeting, shall have the power and duty to (i) determine whether a
nomination or proposal was made in compliance with the procedures set
forth in this Article 13 and elsewhere in the Bylaws and in the
Declaration of Trust and (ii) if any nomination or proposal is not so in
compliance to declare that such nomination or proposal shall be
disregarded.
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