Exhibit (k)(2)
FORM OF
AUCTION AGENCY AGREEMENT
This Auction Agency Agreement (this "Agreement"), dated as of ____________,
2001, is between CNA Income Shares, Inc. (the "Fund") and Bankers Trust Company,
a New York banking corporation.
The Fund proposes to issue 1,200 shares of preferred stock, par value $0.01
per share, liquidation preference $25,000 per share, designated as Auction Rate
Cumulative Preferred Shares, Series T (the "Preferred Shares"), pursuant to
the Fund's Articles Supplementary (as defined below).
The Fund desires that Bankers Trust Company perform certain duties as agent
in connection with each Auction (as defined below) of Preferred Shares (in such
capacity, the "Auction Agent"), and as the transfer agent, registrar, dividend
paying agent and redemption agent with respect to the Preferred Shares (in such
capacity, the "Paying Agent"), upon the terms and conditions of this Agreement,
and the Fund hereby appoints Bankers Trust Company as said Auction Agent and
Paying Agent in accordance with those terms and conditions (hereinafter
generally referred to as the "Auction Agent," except in Sections 3 and 4 below).
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Fund and the Auction Agent agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 TERMS DEFINED BY REFERENCE TO THE ARTICLES SUPPLEMENTARY.
Capitalized terms not defined herein shall have the respective meanings
specified in the Articles Supplementary.
1.2 CERTAIN DEFINED TERMS.
As used herein, the following terms shall have the following meanings,
unless the context otherwise requires:
(a) "Agent Member" of any Person shall mean such Person's agent member of a
participant in the Securities Depository that will act on behalf of a Bidder.
(b) "Auction" shall have the meaning specified in Section 2.1 hereof.
(c) "Auction Procedures" shall mean the Auction Procedures that are set
forth in Part II of the Articles Supplementary.
(d) "Authorized Officer" shall mean each Managing Director, Vice President,
Assistant Vice President and Associate of the Auction Agent and every other
officer or employee of the Auction Agent designated as an "Authorized Officer"
for purposes hereof in a written communication from the Auction Agent to the
Fund.
(e) "Articles Supplementary" shall mean the Articles Supplementary for
Preferred Shares of the Fund dated ___________, 2001 specifying the powers,
preferences and rights of the Preferred Shares.
(f) "Broker-Dealer Agreement" shall mean each agreement between the Auction
Agent and a broker-dealer substantially in the form attached hereto as Exhibit
A.
(g) "Closing" shall mean the date the Fund consummates the transactions for
the issuance and sale of the Preferred Shares.
(h) "Fund Officer" shall mean the Chairman, the President, each Vice
President (whether or not designated by a number or word or words added before
or after the title "Vice President"), the Secretary, the Treasurer, each
Assistant Secretary and each Assistant Treasurer of the Fund and every other
officer or employee of the Fund designated as a "Fund Officer" for purposes
hereof in a notice from the Fund to the Auction Agent.
(i) "Holder" shall be a holder of record of one or more Preferred Shares,
listed as such in the share register maintained by the Paying Agent pursuant to
Section 4.6 hereof.
(j) "Interest Equivalent" means a yield on a 360-day basis of a discount
basis security which is equal to the yield on an equivalent interest-bearing
security.
1.3 RULES OF CONSTRUCTION.
Unless the context or use indicates another or different meaning or intent,
the following rules shall apply to the construction of this Agreement:
(a) Words importing the singular number shall include the plural number and
vice versa.
(b) The captions and headings herein are solely for convenience of
reference and shall not constitute a part of this Agreement nor shall they
affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto," and other words of similar
import refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to New York
City time.
II. THE AUCTION.
2.1 PURPOSE; INCORPORATION BY REFERENCE OF AUCTION PROCEDURES.
(a) The Articles Supplementary provides that the Applicable Rate on
Preferred Shares for each Dividend Period therefor after the initial Dividend
Period shall be the rate per annum that a commercial bank, trust company or
other financial institution appointed by the Fund advises results from the
implementation of the Auction Procedures. The Board of Directors of the Fund has
adopted a resolution appointing Bankers Trust Company as Auction Agent for
purposes of the Auction Procedures. The Auction Agent hereby accepts such
appointment and agrees that, on each Auction Date, it shall follow the
procedures set forth in this Section 2 and the Auction Procedures for the
purpose of determining the Applicable Rate for the Preferred Shares for the next
Dividend Period. Each periodic operation of such procedures is hereinafter
referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures are
incorporated herein by reference in their entirety and shall be deemed to be a
part hereof to the same extent as if such provisions were set forth fully
herein.
2.2 PREPARATION FOR EACH AUCTION; MAINTENANCE OF REGISTRY OF EXISTING
HOLDERS.
(a) As of the date hereof, the Fund shall provide the Auction Agent with a
list of the Broker-Dealers previously approved by the Auction Agent and shall
cause to be delivered to the Auction Agent for execution by the Auction Agent a
Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent
shall keep such list current and accurate and shall indicate thereon, or on a
separate list, the identity of each Existing Holder, if any, whose most recent
Order was submitted by a Broker-Dealer on such list and resulted in such
Existing Holder continuing to hold or purchase Preferred Shares. Not later than
five Business Days prior to any Auction Date for which any change in such list
of Broker-Dealers is to be effective, the Fund shall notify the Auction Agent in
writing of such change and, if any such change is the addition of a
Broker-Dealer to such list, the Fund shall cause to be delivered to the Auction
Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by
such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer
Agreement with each Broker-Dealer prior to the participation of any such
Broker-Dealer in any Auction.
(b) In the event that the Auction Date for any Auction shall be changed
after the Auction Agent shall have given the notice, the Auction Agent, by such
means as the Auction Agent deems practicable, shall give notice of such change
to the Broker-Dealers not later than the earlier of 9:15 a.m. on the new Auction
Date or 9:15 a.m. on the old Auction Date.
(c) The provisions contained in Section 4 of Part I of the Articles
Supplementary concerning Special Dividend Periods and the notification of a
Special Dividend Period will be followed by the Fund and, to the extent
applicable, the Auction Agent, and the provisions contained therein are
incorporated herein by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions were set forth
fully herein.
(d) (i) On each Auction Date, the Auction Agent shall determine the initial
dividend rate and the Maximum Rate. If the initial dividend rate is not quoted
on an interest basis but is quoted on a discount basis, the Auction Agent shall
convert the quoted rate to an Interest Equivalent; or, if the rate obtained by
the Auction Agent is not quoted on an interest or discount basis, the Auction
Agent shall convert the quoted rate to an interest rate after consultation with
the Fund as to the method of such conversion. Not later than 9:30 a.m. on each
Auction Date, the Auction Agent shall notify the Fund and the Broker-Dealers of
the initial dividend rate so determined and of the Maximum Rate.
(ii) If the initial dividend rate is the applicable "AA" Financial
Composite Commercial Paper Rate and such rate is to be based on rates supplied
by Commercial Paper Dealers and one or more of the Commercial Paper Dealers
shall not provide a quotation for the determination of the applicable "AA"
Financial Composite Commercial Paper Rate, the Auction Agent immediately shall
notify the Fund so that the Fund can determine whether to select a substitute
Commercial Paper Dealer or substitute Commercial Paper Dealers to provide the
quotation or quotations not being supplied by any Commercial Paper Dealer or
Commercial Paper Dealers. The Fund promptly shall advise the Auction Agent of
any such selection. If the Fund does not select any such substitute Commercial
Paper Dealer or substitute Commercial Paper Dealers, then the rates shall be
supplied by the remaining Commercial Paper Dealer or Commercial Paper Dealers.
(e) (i) The Auction Agent shall maintain a current registry of the Existing
Holders of the Preferred Shares for purposes of each individual Auction. The
Fund shall use commercially reasonable efforts to provide or cause to be
provided to the Auction Agent within ten Business Days following the date of the
Closing a list of the initial Existing Holders of Preferred Shares, and the
Broker-Dealer of each such Existing Holder through which such Existing Holder
purchased such shares. The Auction Agent may rely upon, as evidence of the
identities of the Existing Holders, such list, the results of each Auction and
notices from any Existing Holder, the Agent Member of any Existing Holder or the
Broker-Dealer of any Existing Holder with respect to such Existing Holder's
transfer of any Preferred Shares to another Person.
(ii) In the event of any partial redemption of Preferred Shares, upon
notice by the Fund to the Auction Agent of such partial redemption, the Auction
Agent promptly shall request the Securities Depository to notify the Auction
Agent of the identities of the Agent Members (and the respective numbers of
shares) from the accounts of which shares have been called for redemption and
the person or department at such Agent Member to contact regarding such
redemption. At least two Business Days prior to the Auction preceding the date
of redemption, the Auction Agent shall request each Agent Member so identified
to disclose to the Auction Agent (upon selection by such Agent Member of the
Existing Holders whose shares are to be redeemed) the number of Preferred Shares
of each such Existing Holder, if any, to be redeemed by the Fund, provided that
the Auction Agent has been furnished with the name and telephone number of a
person or department at such Agent Member from which it is to request such
information. In the absence of receiving any such information with respect to an
Existing Holder, from such Existing Holder's Agent Member or otherwise, the
Auction Agent may continue to treat such Existing Holder as having ownership of
the number of Preferred Shares shown in the Auction Agent's registry of Existing
Holders.
(iii) The Auction Agent shall register a transfer of the ownership of
Preferred Shares from an Existing Holder to another Existing Holder, or to
another Person if permitted by the Fund, only if (A) such transfer is made
pursuant to an Auction or (B) if such transfer is made other than pursuant to an
Auction, the Auction Agent has been notified of such transfer in writing, in a
notice substantially in the form of Exhibit C to the Broker-Dealer Agreement, by
such Existing Holder or by the Agent Member of such Existing Holder. The Auction
Agent is not required to accept any notice of transfer delivered for an Auction
unless it is received by the Auction Agent by 12:00 noon of the Dividend Payment
Date. The Auction Agent shall rescind a transfer made on the registry of the
Existing Holders of any Preferred Shares if the Auction Agent has been notified
in writing, in a notice substantially in the form of Exhibit D to the
Broker-Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person
that (i) purchased any Preferred Shares and the seller failed to deliver such
shares or (ii) sold any Preferred Shares and the purchaser failed to make
payment to such Person upon delivery to the purchaser of such shares.
(f) The Auction Agent may request that the Broker Dealers, as set forth in
Section 3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent with a
list of their respective customers that such Broker-Dealers believe are
Beneficial Owners of Preferred Shares. The Auction Agent shall keep confidential
any such information and shall not disclose any such information so provided to
any Person other than the relevant Broker-Dealer and the Fund, provided that the
Auction Agent reserves the right to disclose any such information if it is
advised by its counsel that its failure to do so would be unlawful.
2.3 AUCTION SCHEDULE.
The Auction Agent shall normally conduct Auctions weekly (usually
Wednesday) in accordance with the schedule set forth below. Such schedule may be
changed by the Auction Agent with the consent of the Fund, which consent shall
not be withheld unreasonably. The Auction Agent shall give notice of any such
change to each Broker-Dealer. Such notice shall be received prior to the first
Auction Date on which any such change shall be effective.
TIME EVENT
By 9:30 a.m. Auction Agent shall advise the Fund and the
Broker-Dealers of the initial dividend rate
and the Maximum Rate as set forth in Section
2.2(d)(i) hereof.
9:30 a.m. - 1:30 p.m. Auction Agent shall assemble information
communicated to it by Broker-Dealers as
provided in Section 3(a) of Part II of the
Articles Supplementary. Submission deadline
is 1:00 p.m
Not earlier than 1:30 p.m. Auction Agent shall make determinations
pursuant to Section 4(a) of Part II of the
Articles Supplementary.
By approximately 3:00 p.m. Auction Agent shall advise the Fund of the
results of the Auction as provided in Section
4(b) of Part II of the Articles
Supplementary.
Submitted Bid Orders and Submitted Sell
Orders will be accepted and rejected in whole
or in part and shares of Preferred Shares
will be allocated as provided in Section 5 of
Part II of the Articles Supplementary.
Auction Agent shall give notice of the
Auction results as set forth in Section 2.4
hereof.
2.4 NOTICE OF AUCTION RESULTS.
On each Auction Date, the Auction Agent shall notify Broker-Dealers of the
results of the Auction held on such date by telephone or through the Auction
Agent's Auction Processing System.
2.5 BROKER-DEALERS.
(a) Not later than 12:00 noon on each Auction Date, the Fund shall pay to
the Auction Agent in Federal Funds or similar same-day funds an amount in cash
equal to (i) in the case of any Auction Date immediately preceding a seven-day
Dividend Period, the product of (A) a fraction the numerator of which is the
number of days in such Dividend Period (calculated by counting the first day of
such Dividend Period but excluding the last day thereof) and the denominator of
which is 360, times (B) 1/4 of 1%, times (C) $25,000 times (D) the sum of the
aggregate number of shares of outstanding Preferred Shares for which the Auction
is conducted and (ii) in the case of any Special Dividend Period, the amount
determined by mutual consent of the Fund and the Broker-Dealers pursuant to
Section 3.5 of the Broker-Dealer Agreements. The Auction Agent shall apply such
moneys as set forth in Section 3.5 of the Broker-Dealer Agreements and shall
thereafter remit to the Fund any remaining funds paid to the Auction Agent
pursuant to this Section 2.5(a).
(b) The Fund shall not designate any Person to act as a Broker-Dealer, or
permit an Existing Holder or a Potential Beneficial Owner to participate in
Auctions through any Person other than a Broker-Dealer, without the prior
written approval of the Auction Agent, which approval shall not be withheld
unreasonably. The Fund may designate an Affiliate or Xxxxxxx Xxxxx Xxxxxx Inc.
to act as a Broker-Dealer.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement as set
forth therein if so directed by the Fund.
Subject to Section 2.5(b) hereof, the Auction Agent from time to time shall
enter into such Broker-Dealer Agreements as the Fund shall request.
(d) The Auction Agent shall maintain a list of Broker-Dealers.
2.6 OWNERSHIP OF PREFERRED SHARES AND SUBMISSION OF BIDS BY THE FUND AND
ITS AFFILIATES.
Neither the Fund nor any Affiliate of the Fund may submit any Sell Order or
Bid, directly or indirectly, in any Auction, except that an Affiliate of the
Fund that is a Broker-Dealer may submit a Sell Order or Bid on behalf of a
Beneficial Owner or a Potential Beneficial Owner. The Fund shall notify the
Auction Agent if the Fund or, to the best of the Fund's knowledge, any Affiliate
of the Fund becomes a Beneficial Owner of any Preferred Shares. Any shares of
Preferred Shares redeemed, purchased or otherwise acquired (i) by the Fund shall
not be reissued, except in accordance with the requirements of the Securities
Act or (ii) by its Affiliates shall not be transferred (other than to the Fund).
The Auction Agent shall have no duty or liability with respect to enforcement of
this Section 2.6.
2.7 ACCESS TO AND MAINTENANCE OF AUCTION RECORDS.
The Auction Agent shall afford to the Fund, its agents, independent public
accountants and counsel, access at reasonable times during normal business hours
to review and make extracts or copies (at the Fund's sole cost and expense) of
all books, records, documents and other information concerning the conduct and
results of Auctions, provided that any such agent, accountant or counsel shall
furnish the Auction Agent with a letter from the Fund requesting that the
Auction Agent afford such person access. The Auction Agent shall maintain
records relating to any Auction for a period of at least two years after such
Auction (unless requested by the Fund to maintain such records for such longer
period not in excess of four years, then for such longer period), and such
records, in reasonable detail, shall accurately and fairly reflect the actions
taken by the Auction Agent hereunder. The Fund agrees to keep confidential any
information regarding the customers of any Broker-Dealer received from the
Auction Agent in connection with this Agreement or any Auction, and shall not
disclose such information or permit the disclosure of such information without
the prior written consent of the applicable Broker-Dealer to anyone except such
agent, accountant or counsel engaged to audit or review the results of Auctions
as permitted by this Section 2.7. The Fund reserves the right to disclose any
such information if it is advised by its counsel that its failure to do so would
(i) be unlawful or (ii) expose it to liability, unless the Broker-Dealer shall
have offered indemnification satisfactory to the Fund. Any such agent,
accountant or counsel, before having access to such information, shall agree to
keep such information confidential and not to disclose such information or
permit disclosure of such information without the prior written consent of the
applicable Broker-Dealer, provided that such agent, accountant or counsel may
reserve the right to disclose any such information if it is advised by its
counsel that its failure to do so would (i) be unlawful or (ii) expose it to
liability, unless the Broker-Dealer shall have offered indemnification
satisfactory to such agent, accountant or counsel.
III. THE AUCTION AGENT AS PAYING AGENT.
3.1 THE PAYING AGENT.
The Board of Directors of the Fund has adopted another resolution
appointing Bankers Trust Company as Auction Agent and Paying Agent. The Paying
Agent hereby accepts such appointment and agrees to act in accordance with its
standard procedures and the provisions of the Articles Supplementary which are
specified herein with respect to the Preferred Shares and as set forth in this
Section 3.
3.2 THE FUND'S NOTICES TO THE PAYING AGENT.
Whenever any shares of Preferred Shares are to be redeemed, the Fund
promptly shall deliver to the Paying Agent a Notice of Redemption, which will be
mailed by the Paying Agent to each Holder at least five Business Days prior to
the date such Notice of Redemption is required to be mailed pursuant to the
Articles Supplementary. The Paying Agent shall have no responsibility to confirm
or verify the accuracy of any such Notice.
3.3 THE FUND TO PROVIDE FUNDS FOR DIVIDENDS AND REDEMPTIONS.
(a) Not later than 12:00 noon on each Dividend Payment Date, the Fund shall
deposit with the Paying Agent an aggregate amount of Federal Funds or similar
same-day funds equal to the declared dividends to be paid to Holders on such
Dividend Payment Date, and shall give the Paying Agent irrevocable instructions
to apply such funds to the payment of such dividends on such Dividend Payment
Date.
(b) If the Fund shall give a Notice of Redemption, then by noon of the date
fixed for redemption, the Fund shall deposit in trust with the Paying Agent an
aggregate amount of Federal Funds or similar same-day funds sufficient to redeem
such shares of Preferred Shares called for redemption and shall give the Paying
Agent irrevocable instructions and authority to pay the redemption price to the
Holders of shares of Preferred Shares called for redemption upon surrender of
the certificate or certificates therefor.
3.4 DISBURSING DIVIDENDS AND REDEMPTION PRICE.
After receipt of the Federal Funds or similar same-day funds and
instructions from the Fund described in Section 3.3 above, the Paying Agent
shall pay to the Holders (or former Holders) entitled thereto (i) on each
corresponding Dividend Payment Date, dividends on the Preferred Shares, and (ii)
on any date fixed for redemption, the redemption price of any shares of
Preferred Shares called for redemption. The amount of dividends for any Dividend
Period to be paid by the Paying Agent to Holders will be determined by the Fund
as set forth in Section 2 of Part I of the Articles Supplementary. The
redemption price to be paid by the Paying Agent to the Holders of any shares of
Preferred Shares called for redemption will be determined as set forth in
Section 3 of Part I of the Articles Supplementary. The Paying Agent shall have
no duty to determine the redemption price and may rely on the amount thereof set
forth in a Notice of Redemption.
IV. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
4.1 ORIGINAL ISSUE OF SHARE CERTIFICATES.
On the Date of Original Issue for any share of Preferred Shares, one
certificate for the Preferred Shares shall be issued by the Fund and registered
in the name of Cede & Co., as nominee of the Securities Depository, and
countersigned by the Paying Agent.
4.2 REGISTRATION OF TRANSFER OR EXCHANGE OF SHARES.
Except as provided in this Section 4.2, the shares of each series of
Preferred Shares shall be registered solely in the name of the Securities
Depository or its nominee. If the Securities Depository shall give notice of its
intention to resign as such, and if the Fund shall not have selected a
substitute Securities Depository acceptable to the Paying Agent prior to such
resignation, then upon such resignation of Preferred Shares, at the Fund's
request, may be registered for transfer or exchange, and new certificates
thereupon shall be issued in the name of the designated transferee or
transferees, upon surrender of the old certificate in form deemed by the Paying
Agent to be properly endorsed for transfer with (a) all necessary endorsers'
signatures guaranteed in such manner and form and by such guarantor as the
Paying Agent may reasonably require, (b) such assurances as the Paying Agent
shall deem necessary or appropriate to evidence the genuineness and
effectiveness of each necessary endorsement and (c) satisfactory evidence of
compliance with all applicable laws relating to the collection of taxes in
connection with any registration of transfer or exchange or funds necessary for
the payment of such taxes. If the certificate or certificates for Preferred
Shares are not held by the Securities Depository or its nominee, payments upon
transfer of shares in an Auction shall be made in Federal Funds or similar
same-day funds to the Auction Agent against delivery of certificates therefor.
4.3 REMOVAL OF LEGEND.
Any request for removal of a legend indicating a restriction on transfer
from a certificate evidencing Preferred Shares shall be accompanied by an
opinion of counsel stating that such legend may be removed and such shares may
be transferred free of the restriction described in such legend, said opinion to
be delivered under cover of a letter from a Fund Officer authorizing the Paying
Agent to remove the legend on the basis of said opinion.
4.4 LOST, STOLEN OR DESTROYED SHARES 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
by the Paying Agent, subject at all times to provisions of law, the Articles
Supplementary governing such matters and resolutions adopted by the Fund with
respect to lost, stolen or destroyed securities. The Paying Agent may issue new
certificates in exchange for and upon the cancellation of mutilated
certificates. Any request by the Fund to the Paying Agent to issue a replacement
or new certificate pursuant to this Section 4.4 shall be deemed to be a
representation and warranty by the Fund to the Paying Agent that such issuance
will comply with provisions of applicable law and the Articles Supplementary and
resolutions of the Fund.
4.5 DISPOSITION OF CANCELED CERTIFICATES; RECORD RETENTION.
The Paying Agent shall retain share certificates which have been canceled
in transfer or in exchange and accompanying documentation in accordance with
applicable rules and regulations of the Securities and Exchange Commission (the
"Commission") for at least two calendar years from the date of such
cancellation. The Paying Agent, upon written request by the Fund, shall afford
to the Fund, its agents and counsel access at reasonable times during normal
business hours to review and make extracts or copies (at the Fund's sole cost
and expense) of such certificates and accompanying documentation. Upon request
by the Fund at any time after the expiration of this two-year period, the Paying
Agent shall deliver to the Fund the canceled certificates and accompanying
documentation. The Fund, at its expense, shall retain such records for a minimum
additional period of at least four calendar years from the date of delivery of
the records to the Fund and shall make such records available during this period
at any time, or from time to time, for reasonable periodic, special, or other
examinations by representatives of the Commission. The Fund also shall undertake
to furnish to the Commission, upon demand, either at its principal office or at
any regional office, complete, correct and current hard copies of any and all
such records. Thereafter, such records shall not be destroyed by the Fund
without the approval of the Paying Agent, which approval shall not be withheld
unreasonably, but will be safely stored for possible future reference.
4.6 SHARE REGISTER.
The Paying Agent shall maintain the share register, which shall contain a
list of the Holders, the number of shares held by each Holder and the address of
each Holder. The Paying Agent shall record in the share register any change of
address of a Holder upon notice by such Holder. In case of any written request
or demand for the inspection of the share register or any other books of the
Fund in the possession of the Paying Agent, the Paying Agent will notify the
Fund and secure instructions as to permitting or refusing such inspection. The
Paying Agent reserves the right, however, to exhibit the share register or other
records to any person in case it is advised by its counsel that its failure to
do so would (i) be unlawful or (ii) expose it to liability, unless the Fund
shall have offered indemnification satisfactory to the Paying Agent.
4.7 RETURN OF FUNDS.
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
Preferred Shares, that remain with the Paying Agent after 12 months shall be
repaid to the Fund upon written request by the Fund.
V. REPRESENTATIONS AND WARRANTIES.
5.1 REPRESENTATIONS AND WARRANTIES OF THE FUND.
The Fund represents and warrants to the Auction Agent that:
(i) the Fund is duly organized and is validly existing as a corporation
under the laws of the State of Maryland, and has full power to execute and
deliver this Agreement and to authorize, create and issue the Preferred Shares;
(ii) the Fund is registered with the Commission under the 1940 Act as a
closed-end, diversified, management investment company;
(iii) this Agreement has been duly and validly authorized, executed and
delivered by the Fund and constitutes the legal, valid and binding obligation of
the Fund, enforceable against the Fund in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equitable principles;
(iv) the form of the certificates evidencing the Preferred Shares comply
with all applicable laws of the State of Maryland;
(v) the Preferred Shares has been duly and validly authorized by the Fund
and, upon completion of the initial sale of the Preferred Shares and receipt of
payment therefor, will be validly issued by the Fund, fully paid and
nonassessable;
(vi) at the time of the offering of the Preferred Shares, the shares
offered will be registered under the Securities Act and no further action by or
before any governmental body or authority of the United States or of any state
thereof is required in connection with the execution and delivery of this
Agreement or will be required in connection with the issuance of shares of the
Preferred Shares, except such action as required by applicable state securities
laws;
(vii) the execution and delivery of this Agreement and the issuance and
delivery of the Preferred Shares do not and will not conflict with, violate, or
result in a breach of the terms, conditions or provisions of, or constitute a
default under, the Articles of Incorporation any order or decree of any court or
public authority having jurisdiction over the Fund, or any mortgage, indenture,
contract, agreement or undertaking to which the Fund is a party or by which it
is bound; and
(viii) no taxes are payable upon or in respect of the execution of this
Agreement or will be payable upon or in respect of the issuance of the Preferred
Shares.
5.2 REPRESENTATIONS AND WARRANTIES OF THE AUCTION AGENT.
The Auction Agent represents and warrants to the Fund that:
(i) The Auction Agent is duly organized and is validly existing as a
banking corporation in good standing under the laws of the State of New York and
has the corporate power to enter into and perform its obligations under this
Agreement; and
(ii) this Agreement has been duly and validly authorized, executed and
delivered by the Auction Agent and constitutes the legal, valid and binding
obligation of the Auction Agent, enforceable against the Auction Agent in
accordance with its terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equitable principles.
VI. THE AUCTION AGENT.
6.1 DUTIES AND RESPONSIBILITIES.
(a) The Auction Agent is acting solely as agent for the Fund hereunder and
owes no fiduciary duties to any Person except as provided by this Agreement.
(b) The Auction Agent undertakes to perform such duties and only such
duties as are set forth specifically in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the Auction
Agent shall not be liable for any action taken, suffered or omitted by it or for
any error of judgment made by it in the performance of its duties under this
Agreement.
6.2 RIGHTS OF THE AUCTION AGENT.
(a) The Auction Agent may rely upon, and shall be protected in acting or
refraining from acting upon, any communication authorized hereby and any written
instruction, notice, request, direction, consent, report, certificate, share
certificate or other instrument, paper or document reasonably believed by it to
be genuine. The Auction Agent shall not be liable for acting upon any telephone
communication authorized hereby which the Auction Agent reasonably believes in
good faith to have been given by the Fund or by a Broker-Dealer. The Auction
Agent may record telephone communications with the Fund or with the
Broker-Dealers or with both.
(b) The Auction Agent may consult with counsel of its choice, and the
written advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reasonable reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or risk its
own funds or otherwise incur or become exposed to financial liability in the
performance of its duties hereunder. The Auction Agent shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Fund.
(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys.
6.3 COMPENSATION, EXPENSES AND INDEMNIFICATION.
(a) The Fund shall pay to the Auction Agent from time to time reasonable
compensation for all services rendered by it under this Agreement and under the
Broker-Dealer Agreements as shall be set forth in a separate writing signed by
the Fund and the Auction Agent, subject to adjustments if the Preferred Shares
no longer are held of record by the Securities Depository or its nominee or if
there shall be such other change as shall increase or decrease materially the
Auction Agent's obligations hereunder or under the Broker-Dealer Agreements.
(b) The Fund shall reimburse the Auction Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Auction
Agent in accordance with any provision of this Agreement and of the
Broker-Dealer Agreements (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any expense, disbursement or
advance attributable to its negligence or bad faith.
(c) The Fund shall indemnify the Auction Agent for, and hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Auction Agent arising out of or in connection with its agency
under this Agreement and under the Broker-Dealer Agreements, including the costs
and expenses of defending itself against any claim of liability in connection
with its exercise or performance of any of its duties hereunder and thereunder,
except such as may result from its negligence or bad faith.
VII. MISCELLANEOUS.
7.1 TERM OF AGREEMENT.
(a) The term of this Agreement is unlimited unless it shall be terminated
as provided in this Section 7.1. The Fund may terminate this Agreement at any
time by so notifying the Auction Agent, provided that, if any Preferred Shares
remains outstanding, the Fund shall have entered into an agreement with a
successor auction agent. The Auction Agent may terminate this Agreement upon
prior notice to the Fund on the date specified in such notice, which date shall
be no earlier than 60 days after delivery of such notice. If the Auction Agent
terminates this Agreement while any Preferred Shares remains outstanding, the
Fund shall use its best efforts to enter into an agreement with a successor
auction agent containing substantially the same terms and conditions as this
Agreement.
(b) Except as otherwise provided in this Section 7.1(b), the respective
rights and duties of the Fund and the Auction Agent under this Agreement shall
cease upon termination of this Agreement. The Fund's representations,
warranties, covenants and obligations to the Auction Agent under Sections 5.1
and 6.3 hereof shall survive the termination hereof. Upon termination of this
Agreement, the Auction Agent shall (i) resign as Auction Agent under the
Broker-Dealer Agreements, (ii) at the Fund's request, deliver promptly to the
Fund copies of all books and records maintained by it in connection with its
duties hereunder, and (iii) at the request of the Fund, transfer promptly to the
Fund or to any successor auction agent any funds deposited by the Fund with the
Auction Agent (whether in its capacity as Auction Agent or as Paying Agent)
pursuant to this Agreement which have not been distributed previously by the
Auction Agent in accordance with this Agreement.
7.2 COMMUNICATIONS.
Except for (i) communications authorized to be made by telephone pursuant
to this Agreement or the Auction Procedures and (ii) communications in
connection with Auctions (other than those expressly required to be in writing),
all notices, requests and other communications to any party hereunder shall be
in writing (including telecopy or similar writing) and shall be given to such
party at its address or telecopier number set forth below:
If to the Fund CNA Income Shares, Inc.
and Continential XXX Xxxxx, 00 Xxxxx
Xxxxxxxxx Company Xxxxxxx, XX 00000
is the Fund's Attention: Secretary
investment adviser, Telecopier No.: 000-000-0000
addressed to: Telephone No.: 000-000-0000
If to the Fund and Prospect Street Income Shares, Inc.
Highland Capital Management, L.P. 00000 Xxxx Xxxx
is the Fund's investment adviser, Suite 1300
addressed to: Xxxxxx, XX 00000
Attention: Secretary
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
If to the Auction Agent, Bankers Trust Company
addressed to: Corporate Trust and Agency Group
0 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Auction Rate Securities
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
or such other address or telecopier number as such party hereafter may specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Fund by a Fund Officer and on
behalf of the Auction Agent by an Authorized Officer.
7.3 ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the parties relating
to the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or implied,
between the parties relating to the subject matter hereof, except for agreements
relating to the compensation of the Auction Agent.
7.4 BENEFITS.
Nothing herein, express or implied, shall give to any Person, other than
the Fund, the Auction Agent and their respective successors and assigns, any
benefit of any legal or equitable right, remedy or claim hereunder.
7.5 AMENDMENT; WAIVER.
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. The Fund shall notify the Auction Agent of any change in the Articles
Supplementary prior to the effective date of any such change. If any such change
in the Articles Supplementary materially increases the Auction Agent's
obligations hereunder, the Fund shall obtain the written consent of the Auction
Agent prior to the effective date of such change.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
7.6 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and permitted assigns of each of the
Fund and the Auction Agent. This Agreement may not be assigned by either party
hereto absent the prior written consent of the other party, which consent shall
not be withheld unreasonably.
7.7 SEVERABILITY.
If any clause, provision or section hereof shall be ruled invalid or
unenforceable by any court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
7.8 EXECUTION IN COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
7.9 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said state.
7.10 LIMITATION OF LIABILITY.
The name CNA INCOME SHARES, INC. refers to the Fund and the Board of
Directors, as directors but not individually or personally, acting from time to
time under the Articles of Incorporation, which are hereby referred to and a
copy of which is on file at the office of the Secretary of the State of Maryland
and the principal office of the Fund. The obligations of the Fund entered into
in the name or on behalf thereof by any member of the Board of Directors,
representatives or agents of the Fund are made not individually, but in such
capacities, and are not binding upon any member of the Board of Directors,
officers, holders of shares of the Fund or representatives of the Board of
Directors personally, but bind only the Fund assets, and all persons dealing
with the Fund must look solely to the Fund property for the enforcement of any
claims against the Fund.
[SIGNATURE PAGES FOLLOW]
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.
CNA INCOME SHARES, INC.
By:
Name:
Title:
BANKERS TRUST COMPANY
By:
Name:
Title:
