EXHIBIT 99.(k)(ix)
FORM OF BROKER DEALER AGREEMENT
FORM OF BROKER-DEALER AGREEMENT
This Broker-Dealer Agreement dated as of __________, 2005, is between
DEUTSCHE BANK TRUST COMPANY AMERICAS (the "Auction Agent") (not in its
individual capacity, but solely as agent of BOULDER GROWTH & INCOME FUND, INC.
(the "Company")), pursuant to authority granted to it in the Auction Agency
Agreement between the Company and the Auction Agent dated as of __________ __,
2005 (the "Auction Agency Agreement") and _______ (together with its successors
and assigns, the "Broker-Dealer").
The Company proposes to issue an aggregate of 1,000 shares of its Auction
Market Preferred Shares, $0.01 par value per share, liquidation preference of
$25,000 per share (the "Shares"), authorized by, and subject to the terms and
conditions of, the Company's charter, including the Articles Supplementary for
the Auction Market Preferred Stock.
The Statement provides that for each Dividend Period of outstanding series
of Shares following the initial Dividend Period, the Applicable Rate for each
series of Shares shall be equal to the rate per annum that results from an
Auction for outstanding shares of each series of Shares. The Board of Directors
of the Company has adopted resolutions appointing Deutsche Bank Trust Company
Americas as Auction Agent for purposes of the Auction Procedures, and pursuant
to Section 2.5 of the Auction Agency Agreement, the Company has requested and
directed the Auction Agent to execute and deliver this Agreement.
The Auction Procedures require the participation of one or more
Broker-Dealers.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Auction Agent and Broker-Dealer agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined by Reference to the Statement.
Capitalized terms used herein but not defined herein shall have the
respective meanings specified in the Statement.
1.2 Terms Defined Herein.
As used herein, the following terms shall have the following meanings,
unless the context otherwise requires:
(a) "Auction" shall have the meaning specified in Section 2.1 of the
Auction Agency Agreement.
(b) "Auction Procedures" shall mean the procedures as from time to
time in effect for conducting Auctions that are set forth in Part II of the
Statement.
(c) "Authorized Officer" shall mean each 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 Company.
(d) "Broker-Dealer Officer" shall mean each officer or employee of a
Broker-Dealer designated as a "Broker-Dealer Officer" for purposes of this
Agreement in a written communication to the Auction Agent.
(e) "Broker-Dealer Agreement" shall mean this Agreement and any
substantially similar agreement between the Auction Agent and a
Broker-Dealer.
(f) "Statement" shall mean the Articles Supplementary for the Auction
Market Preferred Stock in effect at the time the Registration Statement
relating to the Shares is declared effective by the Securities and Exchange
Commission, specifying the powers, preferences and rights of the Shares.
(g) "Submission Deadline" shall mean 1:00 p.m., Eastern Time, on any
Auction Date or such other time on any Auction Date by which the
Broker-Dealer is required to submit Orders to the Auction Agent as
specified by the Auction Agent from time to time.
(h) "Submission Processing Deadline" shall mean the earlier of (i) 40
minutes after the Submission Deadline and (ii) the time when the Auction
Agent begins to disseminate the results of the Auction to the
Broker-Dealer.
(i) "Submission Processing Representation shall have the meaning
specified in Section 3.3(d) hereof.
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. NOTIFICATION OF DIVIDEND PERIOD.
The provisions contained in [Part I, Section 4] of the Statement
concerning the notification of a Special Dividend Period will be followed
by the Auction Agent and Broker-Dealer, 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. Each periodic operation of such
procedures is hereinafter referred to as an "Auction"
III. THE AUCTION.
3.1 Purpose; Incorporation by Reference of Auction Procedures.
(a) On each Auction Date, the provisions of the Auction Procedures
will be followed by the Auction Agent for the purpose of determining the
Applicable Rate for the 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 of this Agreement to the same extent as if such provisions were
set forth fully herein. In the case of any conflict between the terms of
any document incorporated herein by reference and the terms hereof, the
terms in this Agreement shall control.
(c) Broker-Dealer agrees to act as, and assumes the obligations of and
limitations and restrictions placed upon, a Broker-Dealer under this
Agreement. Broker-Dealer understands that other persons meeting the
requirements specified in the definition of "Broker-Dealer" contained in
Part I, Section 17 of the Statement may execute a Broker-Dealer Agreement
and participate as Broker-Dealers in Auctions.
(d) Broker-Dealer and other Broker-Dealers may participate in Auctions
for their own accounts. However, the Company, by notice to Broker-Dealer
and all other Broker Dealers, may prohibit all Broker-Dealers from
submitting Bids in Auctions for their own accounts, provided that
Broker-Dealers may continue to submit Hold Orders and Sell Orders.
3.2 Preparation for Each Auction.
(a) Not later than 9:30 a.m. on each Auction Date for the Shares, the
Auction Agent shall advise Broker-Dealer by telephone of the Reference Rate
and the Maximum Applicable Rate in effect on such Auction Date.
(b) In the event that the Auction Date for any Auction shall be
changed after the Auction Agent has given the notice referred to in
paragraph (a) of the settlement procedures set forth on Exhibit A hereto
(the "Settlement Procedures"), the Auction Agent, by such means as the
Auction Agent reasonably deems practicable, shall give notice of such
change to Broker-Dealer not later than the earlier of 9:15 a.m. on the new
Auction Date or 9:15 a.m. on the old Auction Date. Thereafter,
Broker-Dealer promptly shall notify customers of Broker-Dealer that
Broker-Dealer believes are Beneficial Owners of Shares of such change in
the Auction Date.
(c) The Auction Agent from time to time may request Broker-Dealer to
provide it with a list of the respective customers Broker-Dealer believes
are Beneficial Owners of Shares. Broker-Dealer shall comply with any such
request, and the Auction Agent shall keep confidential any such
information, including information received as to the identity of Bidders
in any Auction, and shall not disclose any such information so provided to
any Person other than the Company; and such information shall not be used
by the Auction Agent or its officers, employees, agents or representatives
for any purpose other than such purposes as are described herein.
Notwithstanding the foregoing, the Auction Agent reserves the right and is
authorized to disclose any such information if (a) it is ordered to do so
by a court of competent jurisdiction or a regulatory body, judicial or
quasi-judicial agency or authority having the authority to compel such
disclosure or (b) it is advised by its counsel that its failure to do so
would be unlawful. In the event that the Auction Agent is required to
disclose information in accordance with the foregoing sentence, it shall
provide written notice of such requirement to Broker-Dealer as promptly as
practicable. The Auction Agent shall transmit any list of customers
Broker-Dealer believes are Beneficial Owners of Shares and information
related thereto only to its officers, employees, agents or representatives
who need to know such information for the purposes of acting in accordance
with this Agreement, and the Auction Agent shall prevent the transmission
of such information to others and shall cause its officers, employees,
agents and representatives to abide by the foregoing confidentiality
restrictions.
3.3 Auction Schedule; Method of Submission of Orders.
(a) The Company and the Auction Agent shall conduct Auctions for the
Shares in accordance with the schedule set forth below. Such schedule may
be changed at any time by the Auction Agent with the consent of the
Company, which consent shall not be withheld unreasonably. The Auction
Agent shall give notice of any such change to 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. The Auction Agent shall advise the Company
and the Broker-Dealers of the Reference Rate
and the Maximum Rate as set forth in Section 3.2(a)
hereof.
9:30 a.m. - 1:00 p.m. Broker-Dealers assemble information received from
each Bidder (Existing Owners or Potential Owners)
and any internally initiated Broker-Dealers'
Bids in accordance with the Auction Procedures.
Not later than Submission Processing Deadline The Auction Agent shall accept any Orders submitted
subject to a Submission Processing Representation
and make determinations pursuant to [Part II,
Section 3] of the Statement.
By approximately 3:00 p.m. The Auction Agent shall advise the Company of the
results of the Auction as provided in [Part II,
Section 3] of the Statement. Submitted Bids and
Submitted Sell Orders will be accepted and rejected
in whole or in part and Shares will be allocated as
provided in [Part II, Section 4] of the Statement.
The Auction Agent shall give notice of the Auction
results as set forth in Section 3.4(a) hereof.
The Auction Agent will follow the Bond Market Association's Market Practice
U.S. Holiday Recommendations for shortened trading days for the bond markets
(the "BMA Recommendation") unless the Auction Agent is instructed otherwise. In
the event of a BMA Recommendation on an Auction Date, the Submission Deadline
will be 11:30 a.m., instead of 1:00 p.m., and as a result the notice set forth
in Section 3.3 will occur earlier.
(b) Broker-Dealer agrees to maintain a list of Potential Beneficial
Owners and to contact the Potential Beneficial Owners on such list on or
prior to each Auction Date for the purposes set forth in [Part II, Section
1] of the Statement.
(c) Broker-Dealer shall submit Orders to the Auction Agent in writing
in substantially the form attached hereto as Exhibit B. Broker-Dealer shall
submit separate Orders to the Auction Agent for each Potential Beneficial
Owner or Beneficial Owner on whose behalf Broker-Dealer is submitting an
Order and shall not net or aggregate the Orders of Potential Beneficial
Owners or Beneficial Owners on whose behalf Broker-Dealer is submitting
Orders.
(d) Broker-Dealer may submit an Order after the Submission Deadline
and prior to the Submission Processing Deadline if the Order was (i)
received by the Broker-Dealer from Existing Owners or Potential Owners
prior to the Submission Deadline or (ii) initiated internally by
Broker-Dealer for its own account prior to the Submission Deadline. Each
Order submitted to the Auction Agent after the Submission Deadline and
prior to the Submission Processing Deadline shall constitute a
representation by Broker-Dealer that such Order was (i) received from an
Existing Owner or Potential Owner prior to the Submission Deadline or (ii)
initiated internally by Broker-Dealer for its own account prior to the
Submission Deadline (the Submission Processing Representation").
(e) Broker-Dealer shall deliver to the Auction Agent (i) a written
notice, substantially in the form attached hereto as Exhibit C, of
transfers of Shares, made through Broker-Dealer by a Beneficial Owner to
another Person other than pursuant to an Auction, and (ii) a written
notice, substantially in the form attached hereto as Exhibit D, of the
failure of Shares to be transferred to or by any Person that purchased or
sold Shares through Broker-Dealer pursuant to an Auction. The Auction Agent
is not required to accept any notice delivered pursuant to the terms of the
foregoing sentence with respect to an Auction unless it is received by the
Auction Agent by 3:00 p.m. on the Business Day preceding the applicable
Auction Date.
3.4 Notice of Auction Results.
(a) On each Auction Date, the Auction Agent shall provide to
Broker-Dealer the notice required by paragraph (a) of the Settlement
Procedures. On the Business Day next succeeding such Auction Date, the
Auction Agent shall notify Broker-Dealer in writing of the disposition of
all Orders submitted by Broker-Dealer in the Auction held on such Auction
Date.
(b) Broker-Dealer shall notify each Beneficial Owner or Potential
Beneficial Owner on whose behalf Broker-Dealer has submitted an Order as
set forth in paragraph (b) of the Settlement Procedures, and take such
other action as is required of Broker-Dealer pursuant to the Settlement
Procedures.
If any Beneficial Owner or Existing Holder selling Shares in an
Auction fails to deliver such Shares, the Broker-Dealer of any Person that
was to have purchased Shares in such Auction may deliver to such Person a
number of whole Shares that is less than the number of Shares that
otherwise was to be purchased by such Person. In such event, the number of
Shares to be so delivered shall be determined by such Broker-Dealer.
Delivery of such lesser number of Shares shall constitute good delivery.
Upon the occurrence of any such failure to deliver Shares, such
Broker-Dealer shall deliver to the Auction Agent the notice required by
Section 3.3(e)(ii) hereof. Notwithstanding the foregoing terms of this
Section (b), any delivery or non-delivery of Shares which represents any
departure from the results of an Auction, as determined by the Auction
Agent, shall be of no effect unless and until the Auction Agent shall have
been notified of such delivery or non-delivery in accordance with the terms
of Section 3.3(e) hereof.
3.5 Service Charge to be Paid to Broker-Dealer.
Not later than 3:00 p.m. on each Dividend Payment Date, the Auction Agent
after each Auction will pay to each Broker-Dealer, from funds provided by the
Company, a service charge in the amount equal to: (i) in the case of any Auction
immediately preceding a Dividend Period of less than one year, the product of
(A) a fraction the numerator of which is the number of days in the 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)
______% times (C) $_______ times (D) the sum of the aggregate number of Shares
placed by such Broker-Dealer, or (ii) the amount mutually agreed upon by the
Company and the Broker-Dealers in the case of any Auction immediately preceding
a Dividend Period of one year or longer. For the purposes of the preceding
sentence, the Shares shall be placed by a Broker-Dealer if such shares were (i)
the subject of Hold Orders deemed to have been submitted to the Auction Agent by
the Broker-Dealer and were acquired by the Broker-Dealer for its own account or
were acquired by the Broker-Dealer for its customers who are Beneficial Owners
or (ii) the subject of an Order submitted by the Broker-Dealer that is (a) a
Submitted Bid of an Existing Holder that resulted in the Existing Holder
continuing to hold the shares as a result of the Auction or (b) a Submitted Bid
of a Potential Holder that resulted in the Potential Holder purchasing the
shares as a result of the Auction or (iii) a valid Hold Order. For the avoidance
of doubt, only one Broker-Dealer shall be considered to have placed a particular
Share at any particular Auction for purposes of this Section.
IV. THE AUCTION AGENT.
4.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the Company
hereunder and owes no fiduciary duties to any Person.
(b) The Auction Agent undertakes to perform such duties and only such
duties as are set forth specifically in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the
Auction Agent.
(c) In the absence of bad faith or negligence on its part, the Auction
Agent shall not be liable for any action taken, suffered or omitted by it,
or for any error of judgment made by it in the performance of its duties
under this Agreement. The Auction Agent shall not be liable for any error
of judgment made in good faith unless the Auction Agent shall have been
grossly negligent in ascertaining (or failing to ascertain) the pertinent
facts.
4.2 Rights of the Auction Agent.
(a) The Auction Agent may rely conclusively upon, and shall be fully
protected in acting or refraining from acting in accordance with, any
communication authorized by this Agreement and any proper written
instruction, notice, request, direction, consent, report, certificate,
share certificate or other instrument, paper or document reasonably
believed by it to be genuine and appropriately authorized. The Auction
Agent shall not be liable for acting upon any telephone communication
authorized by this Agreement which the Auction Agent reasonably believes in
good faith, after reasonable inquiry, to have been given by the Company or
by a Broker-Dealer. The Auction Agent may record telephone communications
with the Company or with the Broker-Dealers or with both.
(b) The Auction Agent may consult with counsel of its choice and the
advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by the
Auction Agent 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. Unless otherwise instructed by
the Company in writing, the Auction Agent (i) shall not be obligated to
invest any money received by it hereunder and (ii) shall be under no
liability for interest on any money received by it hereunder.
(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys and shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it with due care hereunder.
(e) The Auction Agent shall not be responsible or liable for any
failure or delay in the performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond
its reasonable control, including, without limitation, acts of God;
earthquakes; fires; floods; wars; civil or military disturbances; sabotage;
epidemics; riots; acts of terrorism; interruptions, loss or malfunctions of
utilities, computer (hardware or software) or communications services;
accidents; labor disputes; acts of civil or military authority or
governmental actions; it being understood that the Auction Agent shall use
reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the
circumstances.
(f) The Auction Agent shall not be required to, and does not, make any
representations as to the validity, accuracy, value or genuineness of any
signatures or endorsements, other than its own and those of its authorized
officers.
(g) Any corporation into which the Auction Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Auction
Agent shall be a party, or any corporation succeeding to the dealing and
trading business of the Auction Agent shall be the successor of the Auction
Agent hereunder, with the consent of the Company but without the execution
or filing of any paper with any party hereto or any further act on the part
of any of the parties hereto, except where any instrument of transfer or
assignment may be required by law to effect such succession, anything
herein to the contrary notwithstanding.
(h) All the rights, privileges, immunities and protections granted to
the Auction Agent herein are deemed granted to the Paying Agent and [AGENT]
in any of the capacities it undertakes in connection with this Agreement.
(i) Whenever in the administration of the provisions of this
Agreement, the Auction Agent shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering any action to
be taken hereunder, such matter, in the absence of negligence or bad faith
on the part of the Auction Agent, shall be deemed to be proved conclusively
and established by a certificate describing the action requested by the
Company or the Broker Dealer, signed by the Company or the Broker Dealer,
respectively, and delivered to the Auction Agent and such certificate, in
the absence of negligence or bad faith on the part of the Auction Agent,
shall be full warrant to the Auction Agent for any action taken or omitted
by it under the provisions of this Agreement upon the faith thereof. Upon
receipt of any such certificate signed by the Company or the Broker-Dealer,
the Auction Agent shall promptly provide a copy of said certificate to the
Broker-Dealer or the Company, respectively. The Auction Agent shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, entitlement, order, approval or other paper or document
furnished by the Company or the Broker-Dealer, except to the extent that
such failure to investigate would be deemed grossly negligent.
V. MISCELLANEOUS.
5.1 Termination.
Any party may terminate this Agreement at any time upon five days' prior
written notice to the other party; provided, however, that if the Broker-Dealer
is _________________, either _____________ or the Auction Agent may terminate
this Agreement only upon 60 days' prior written notice to the other party and to
the Company. This Agreement shall automatically terminate upon the redemption of
all outstanding Shares or upon termination of the Auction Agency Agreement.
5.2 Force Majeure
Neither party to this Agreement shall be responsible or liable for any
failure or delay in the performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
reasonable control, including, without limitation, acts of God; earthquakes;
fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots;
acts of terrorism; interruptions, loss or malfunctions of utilities, computer
(hardware or software) or communications services; accidents; labor disputes;
acts of civil or military authority or governmental actions; it being understood
that the parties shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable
under the circumstances.
5.3 Participant in Securities Depository; Payment of Dividends in Same-Day
Funds.
(a) Broker-Dealer is at the date hereof, and shall remain for the term
of this Agreement, a member of, or a participant in, the Securities
Depository (or an affiliate of such a member or participant).
(b) Broker-Dealer represents that it (or if Broker-Dealer does not act
as Agent Member, one of its affiliates) shall make all dividend payments on
the Shares available in same-day funds on each Dividend Payment Date to
customers that use Broker-Dealer (or its affiliate) as Agent Member.
5.4 Communications.
(a) Except for (i) communications authorized to be made by telephone
pursuant to this Agreement or the Auction Procedures and (ii)
communications with the Auctions (other than those expressly required to be
made 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 Auction Agent, addressed to:
Deutsche Bank Trust Company Americas
Trust & Securities Services
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Auction Rate Securities
Telephone: 000-000-0000
Facsimile: 212-797-8600
If to the Broker-Dealer,
addressed to:
Telephone:
Facsimile:
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 Broker-Dealer by a Broker-Dealer
Officer and on behalf of the Auction Agent by an Authorized Officer.
Broker-Dealer may record telephone communications with the Auction Agent.
5.5 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.
5.6 Benefits.
Nothing in this Agreement, express or implied, shall give to any person,
other than the Company, which is a third party beneficiary of this Agreement,
the Auction Agent and Broker-Dealer and their respective successors and
permitted assigns, any benefit of any legal or equitable right, remedy or claim
under this Agreement.
5.7 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.
(b) Failure of either party to this Agreement to exercise any right or
remedy hereunder in the event of a breach of this Agreement by the other
party shall not constitute a waiver of any such right or remedy with
respect to any subsequent breach.
5.8 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
Broker-Dealer and the Auction Agent. This Agreement may not be assigned by
either party hereto absent the prior written consent of the other party.
5.9 Severability.
If any clause, provision or section of this Agreement 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
remaining clause, provision or section hereof.
5.10 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.
5.11 Governing Law, Jurisdiction, Waiver of Trial By Jury.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF
RELATING TO CONFLICTS OF LAW, OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF NEW YORK). THE PARTIES AGREE HERETO THAT ALL ACTIONS AND
PROCEEDINGS ARISING OUT OF THIS BROKER-DEALER AGREEMENT OR ANY TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE BROUGHT IN THE COURTS LOCATED IN THE BOROUGH OF
MANHATTAN, CITY OF NEW YORK, STATE OF NEW YORK.
EACH PARTY WAIVES ANY OBJECTION THAT IT MAY HAVE THAT SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN THE COURTS LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF
NEW YORK AND STATE OF NEW YORK WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES
NOT TO PLEAD OR CLAIM THE SAME. EACH OF THE PARTIES HERETO ALSO IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[Signature page follows]
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.
Deutsche Bank Trust Company Americas, as Auction Agent
By:--------------------------------------------
Name:
Title:
By:--------------------------------------------
Name:
Title:
[Broker-Dealer]
By:--------------------------------------------
Name:
Title:
EXHIBIT A
SETTLEMENT PROCEDURES
Capitalized terms used herein shall have the respective meanings specified
in the Statement.
(a) On each Auction Date, the Auction Agent shall notify by telephone, or
through the Auction Agent's auction processing system, the Broker-Dealers that
participated in the Auction held on such Auction Date and submitted an Order on
behalf of any Beneficial Owner or Potential Beneficial Owner of:
(i) the Applicable Rate fixed for the next succeeding Dividend Period;
(ii) whether Sufficient Clearing Bids existed for the determination of the
Applicable Rate;
(iii) if such Broker-Dealer (a "Seller's Broker-Dealer") submitted a Bid or
a Sell Order on behalf of a Beneficial Owner, the number of Shares, if any, to
be sold by such Beneficial Owner;
(iv) if such Broker-Dealer (a "Buyer's Broker-Dealer") submitted a Bid on
behalf of a Potential Beneficial Owner, the number of Shares, if any, to be
purchased by such Potential Beneficial Owner;
(v) if the aggregate number of Shares to be sold by all Beneficial Owners
on whose behalf such Broker-Dealer submitted a Bid or a Sell Order exceeds the
aggregate number of Shares to be purchased by all Potential Beneficial Owners on
whose behalf such Broker-Dealer submitted a Bid, the name or names of one or
more Buyer's Broker-Dealers (and the name of the Agent Member, if any, of each
such Buyer's Broker-Dealer) acting for one or more purchasers of such excess
number of Shares and the number of such Shares to be purchased from one or more
Beneficial Owners on whose behalf such Broker-Dealer acted by one or more
Potential Beneficial Owners on whose behalf each of such Buyer's Broker-Dealers
acted;
(vi) if the aggregate number of Shares to be purchased by all Potential
Beneficial Owners on whose behalf such Broker-Dealer submitted a Bid exceeds the
aggregate number of Shares to be sold by all Beneficial Owners on whose behalf
such Broker-Dealer submitted a Bid or a Sell Order, the name or names of one or
more Seller's Broker-Dealers (and the name of the Agent Member, if any, of each
such Seller's Broker-Dealer) acting for one or more sellers of such excess
number of Shares and the number of such Shares to be sold to one or more
Potential Beneficial Owners on whose behalf such Broker-Dealer acted by one or
more Beneficial Owners on whose behalf each of such Seller's Broker-Dealers
acted; and
(vii) the Auction Date of the next succeeding Auction with respect to the
Shares.
(b) On each Auction Date, each Broker-Dealer that submitted an Order on
behalf of any Beneficial Owner or Potential Beneficial Owner shall:
(i) in the case of a Broker-Dealer that is a Buyer's Broker-Dealer,
instruct each Potential Beneficial Owner on whose behalf such Broker-Dealer
submitted a Bid that was accepted, in whole or in part, to instruct such
Potential Beneficial Owner's Agent Member to pay to such Broker-Dealer (or its
Agent Member) through the Securities Depository the amount necessary to purchase
the number of Shares to be purchased pursuant to such Bid against receipt of
such Shares and advise such Potential Beneficial Owner of the Applicable Rate
for the next succeeding Dividend Period;
(ii) in the case of a Broker-Dealer that is a Seller's Broker-Dealer,
instruct each Beneficial Owner on whose behalf such Broker-Dealer submitted a
Sell Order that was accepted, in whole or in part, or a Bid that was accepted,
in whole or in part, to instruct such Beneficial Owner's Agent Member to deliver
to such Broker-Dealer (or its Agent Member) through the Securities Depository
the number of Shares to be sold pursuant to such Order against payment therefor
and advise any such Beneficial Owner that will continue to hold Shares of the
Applicable Rate for the next succeeding Dividend Period;
(iii) advise each Beneficial Owner on whose behalf such Broker-Dealer
submitted a Hold Order of the Applicable Rate for the next succeeding Dividend
Period;
(iv) advise each Beneficial Owner on whose behalf such Broker-Dealer
submitted an Order of the Auction Date for the next succeeding Auction; and
(v) advise each Potential Beneficial Owner on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in part, of the
Auction Date for the next succeeding Auction.
(c) On the basis of the information provided to it pursuant to (a) above,
each Broker-Dealer that submitted a Bid or a Sell Order on behalf of a Potential
Beneficial Owner or a Beneficial Owner shall, in such manner and at such time or
times as in its sole discretion it may determine, allocate any funds received by
it pursuant to (b)(i) above and any Shares received by it pursuant to (b)(ii)
above among the Potential Beneficial Owners, if any, on whose behalf such
Broker-Dealer submitted Bids, the Beneficial Owners, if any, on whose behalf
such Broker-Dealer submitted Bids that were accepted or Sell Orders, and any
Broker-Dealer or Broker-Dealers identified to it by the Auction Agent pursuant
to (a)(v) or (a)(vi) above.
(d) On each Auction Date:
(i) each Potential Beneficial Owner and Beneficial Owner shall instruct its
Agent Member as provided in (b)(i) or (ii) above, as the case may be;
(ii) each Seller's Broker-Dealer which is not an Agent Member of the
Securities Depository shall instruct its Agent Member to (A) pay through the
Securities Depository to the Agent Member of the Beneficial Owner delivering
Shares to such Broker-Dealer pursuant to (b)(ii) above the amount necessary to
purchase such Shares against receipt of such Shares, and (B) deliver such Shares
through the Securities Depository to a Buyer's Broker-Dealer (or its Agent
Member) identified to such Seller's Broker-Dealer pursuant to (a)(v) above
against payment therefor; and
(iii) each Buyer's Broker-Dealer which is not an Agent Member of the
Securities Depository shall instruct its Agent Member to (A) pay through the
Securities Depository to a Seller's Broker-Dealer (or its Agent Member)
identified pursuant to (a)(vi) above the amount necessary to purchase the Shares
to be purchased pursuant to (b)(i) above against receipt of such Shares, and (B)
deliver such Shares through the Securities Depository to the Agent Member of the
purchaser thereof against payment therefor.
(e) On the day after the Auction Date:
(i) each Bidder's Agent Member referred to in (d)(i) above shall instruct
the Securities Depository to execute the transactions described in (b)(i) or
(ii) above, and the Securities Depository shall execute such transactions;
(ii) each Seller's Broker-Dealer or its Agent Member shall instruct the
Securities Depository to execute the transactions described in (d)(ii) above,
and the Securities Depository shall execute such transactions; and
(iii) each Buyer's Broker-Dealer or its Agent Member shall instruct the
Securities Depository to execute the transactions described in (d)(iii) above,
and the Securities Depository shall execute such transactions.
(f) If a Beneficial Owner selling Shares in an Auction fails to deliver
such Shares (by authorized book-entry), a Broker-Dealer may deliver to the
Potential Beneficial Owner on behalf of which it submitted a Bid that was
accepted a number of whole Shares that is less than the number of Shares that
otherwise was to be purchased by such Potential Beneficial Owner. In such event,
the number of Shares to be so delivered shall be determined solely by such
Broker-Dealer. Delivery of such lesser number of Shares shall constitute good
delivery. Notwithstanding the foregoing terms of this paragraph (f), any
delivery or non-delivery of Shares which shall represent any departure from the
results of an Auction, as determined by the Auction Agent, shall be of no effect
unless and until the Auction Agent shall have been notified of such delivery or
non-delivery in accordance with the provisions of the Auction Agency Agreement
and the Broker-Dealer Agreements.
EXHIBIT B
AUCTION BID FORM
Submit To: Issue:
______________ Shares of _____________
Investment Company
The undersigned Broker-Dealer submits the following Order on behalf of the
Bidder listed below:
Name of Bidder:
--------------------------------------
BENEFICIAL OWNER
Shares now held ______________________ HOLD __________________
BID at rate of -----------------
SELL ---------------------
POTENTIAL BENEFICIAL OWNER
# of Preferred Shares___________
BID at rate of___________:
(1) If submitting more than one Bid for one Bidder, use additional
Auction Bid Forms.
(2) If one or more Bids covering in the aggregate more than the
number of outstanding Shares held by any Beneficial Owner are
submitted, such bid shall be considered valid in the order of
priority set forth in the Auction Procedures on the above issue.
(3) A Hold or Sell Order may be placed only by a Beneficial Owner
covering a number of Shares not greater than the number of Shares
currently held.
(4) Potential Beneficial Owners may make only Bids, each of which
must specify a rate. If more than one Bid is submitted on behalf
of any Potential Beneficial Owner, each Bid submitted shall be a
separate Bid with the rate specified.
(5) Bids may contain no more than three figures to the right of the
decimal point (.001 of 1%). Fractions will not be accepted.
(6) An Order must be submitted in whole Shares of Shares with an
aggregate liquidation preference of $25,000.
-------------------------------------------------
Authorized Signature:----------------------------
Name:
Title:
EXHIBIT C
(Note: To be used only for transfers made other than pursuant to an Auction)
TRANSFER FORM
Re: _______________________________________________________________
("Shares")
We are (check one):
[ ] the Existing Holder named below;
[ ] the Broker-Dealer for such Beneficial Owner or
[ ] the Agent Member for such Existing Holder.
We hereby notify you that such Beneficial Owner has transferred ________
Shares to ----------------------------------
------------------------------------------------
(Name of Existing Holder)
------------------------------------------------
(Name of Broker-Dealer)
------------------------------------------------
(Name of Agent Member)
By:
---------------------------------------
Printed Name:
Title:
EXHIBIT D
(Note: To be used only for failures to deliver or to pay for
Shares sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
We are a Broker-Dealer for _____________________ (the
["Purchaser"]/["Seller"]), which [purchased]/[sold] _____ Shares of
_____________________________________________ in the Auction held on
____________________ from the [purchaser]/[seller] of such Shares.
We hereby notify you that (check one):
______ the Seller failed to deliver such Shares to the Purchaser.
______ the Purchaser failed to make payment to the Seller upon delivery of such
Shares.
Name:__________________________________
By:------------------------------------
Printed Name:
Title:
