Exhibit 99.(k)(iv)
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BROKER-DEALER AGREEMENT
BETWEEN
THE BANK OF NEW YORK
AS AUCTION AGENT
AND
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AS BROKER-DEALER
DATED AS OF _____________, 2004
RELATING TO
AUCTION MARKET PREFERRED SHARES OF
DREMAN/CLAYMORE DIVIDEND & INCOME FUND
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BROKER-DEALER AGREEMENT dated as of _______, 2004 (this "Agreement"), among
(i) The Bank of New York, a New York banking corporation, as auction agent (the
"Auction Agent") (not in its individual capacity but solely as agent) pursuant
to authority granted to it in the Auction Agency Agreement, (ii) Dreman/Claymore
Dividend & Income Fund, a Delaware statutory trust (the "Fund"), and (iii) each
broker-dealer whose name appears on the signature page hereof, as broker-dealer
(together with its successors and assigns as such hereinafter referred to as
"BD").
The Fund intends to issue shares of one or more series of Auction Market
Preferred Shares, liquidation preference $25,000 per share (the "AMPS"). The
shares of each series of AMPS shall be issued in book-entry form through the
facilities of the Securities Depository. References to "AMPS" in this Agreement
shall refer only to the beneficial interests in the AMPS unless the context
otherwise requires.
The Auction Procedures require the participation of a Broker-Dealer.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Auction Agent, the Fund and BD
agree as follows:
1. DEFINITIONS AND RULES OF CONSTRUCTION
1.1 TERMS DEFINED BY STATEMENT OF PREFERENCES. Capitalized terms not
defined herein shall have the respective meanings specified in the Statement.
1.2 TERMS DEFINED HEREIN. As used herein and in the Settlement
Procedures, the following terms shall have the following meanings, unless the
context otherwise requires:
"Agent Member" of any Person shall mean the member of, or
participant in, the Securities Depositary that will act on behalf of a Bidder.
"Agreement" with respect to the Fund shall mean this Agreement as
may be amended in writing with written consent of the Fund.
"AMPS" shall mean the preferred shares, par value $.01 per share,
of the Fund designated as its "Auction Market Preferred Shares" and bearing such
further designation as to series as the Board of Trustees of the Fund or any
committee thereof shall specify.
"Auction" shall have the meaning specified in Section 2.1 hereof.
"Auction" Procedures" shall mean the auction procedures
constituting Section 9 of the Statement as of the filing thereof.
"Authorized Officer" of the Auction Agent shall mean each Vice
President, Assistant Vice President and Assistant Treasurer of the Auction Agent
assigned to the Dealing and Trading Group of its Corporate Trust Department and
every other officer or employee of the Auction Agent designated as an
"Authorized Officer" for purposes hereof in a written communication to the Fund.
"Fund Officer" shall mean the Chairman and Chief Executive
Officer, 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 Vice President, 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 to the Auction Agent.
"Settlement Procedures" shall mean the Settlement Procedures
attached to the Auction Agency Agreement as Exhibit B.
"Statement" shall mean the Statement of Preferences of Auction
Market Preferred Shares, as the same may be amended, supplemented or modified
from time to time.
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.
(e) This Agreement shall apply separately but equally to all
series of AMPS that may be issued. Sections 1 and 2 hereof shall be read in
conjunction with the Statement and in the event of any conflict with the
Statement, the Statement shall take precedence.
1.4 WARRANTIES OF BD.
(a) BD hereby represents and warrants that this Broker-Dealer
Agreement has been duly authorized, executed and delivered by BD and that,
assuming the due authorization, execution and delivery hereof by the Auction
Agent, this Broker-Dealer Agreement constitutes a valid and binding agreement of
BD, enforceable against it in accordance with its terms. BD's representations
and warranties in this Section 1.4 shall survive the termination of this
Agreement.
(b) BD further represents and warrants that BD is a registered
broker-dealer pursuant to Section 15(b) of the Securities and Exchange Act of
1934, as amended. BD further represents and warrants that it is a member of the
NASD.
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2. THE AUCTIONS
2.1 PURPOSE; INCORPORATION BY REFERENCE OF AUCTION PROCEDURES AND
SETTLEMENT 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 AMPS for the next Rate Period. Each periodic
implementation of such procedures is hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures
and the Settlement Procedures are incorporated herein by reference in their
entirety and shall be deemed to be a part of this Agreement to the same extent
as if such provisions were fully set forth herein.
(c) BD agrees to act as, and assumes the obligations of and
limitations and restrictions placed upon, a Broker-Dealer under this Agreement.
(d) BD acknowledges and agrees that each provision of the
Auction Procedures that requires BD to perform an obligation or procedure is
hereby incorporated herein by reference and that this Agreement shall constitute
the Fund's instruction, and BD hereby agrees, to perform such obligations and
procedures without further request by or instructions from the Fund.
(e) BD may participate in Auctions for its own account.
2.2 PREPARATION FOR EACH AUCTION.
(a) Not later than 9:30 A.M. on each Auction Date, the Auction
Agent shall notify the Fund and BD of the Maximum Rate and the Treasury Index
Rate(s) and the LIBOR Rate(s), as the case may be, used to make such
determination.
(b) BD shall cause the Maximum Rate to be communicated as
promptly as practicable to its customers who hold or may be interested in
acquiring AMPS.
(c) As promptly as practicable after determining each Auction
Date, but not later than 9:15 a.m. on the Business Day preceding such Auction
Date, the Auction Agent shall notify BD, by such means as the Auction Agent
deems practicable, of the scheduled date of such Auction Date. If the Auction
Date for any Auction shall be changed after the Auction Agent has given such
notice or the notice referred to in clause (g) of paragraph 1 of the Settlement
Procedures, the Auction Agent, by such means as the Auction Agent deems
practicable, shall give notice of such change to BD not later than the earlier
of (x) 9:15 a.m. on the Business Day preceding the new Auction Date, and (y)
9:15 a.m. on the original Auction Date. Thereafter, BD shall promptly notify
customers of BD that are Existing Holders of such change in the Auction Date.
(d) If required by applicable law, or requested by the Auction
Agent, BD shall provide a list of Existing Holders based upon inquiries of those
Persons such Broker-Dealer believes are Beneficial Owners as a result of the
most recent Auction to the Auction
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Agent promptly after any date so requested by the Auction Agent. 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 other parties
hereto, provided that the Auction Agent reserves the right to disclose any such
information if (a) it is ordered to do so by a court of competent jurisdiction
or a regulatory, judicial or quasi-judicial agency, (b) it is advised by its
counsel that its failure to do so would be unlawful or (c) failure to do so
would expose the Auction Agent to loss, liability, claim, damage or expense for
which it has not received indemnity satisfactory to it.
(e) BD agrees to maintain a list of customers relating to a
series of AMPS and to use its best efforts, subject to existing laws and
regulations, to contact the customers on such list whom BD believes may be
interested in participating in the Auction on each Auction Date, as a Potential
Holder or a Potential Beneficial Owner, for the purposes set forth in the
Auction Procedures. Nothing herein shall require BD to submit an Order for any
customer in any Auction.
(f) The Auction Agent's registry of Existing Holders of shares
of a series of AMPS shall be conclusive and binding on BD. BD may inquire of the
Auction Agent between 3:00 p.m. on the Business Day preceding an Auction for
shares of a series of AMPS and 9:30 a.m. on the Auction Date for such Auction to
ascertain the number of shares of such series in respect of which the Auction
Agent has determined BD to be an Existing Holder. If BD believes it is the
Existing Holder of fewer shares of such series than specified by the Auction
Agent in response to BD's inquiry, BD may so inform the Auction Agent of that
belief. BD shall not, in its capacity as Existing Holder of shares of such
series, submit Orders in such Auction in respect of shares of such series
covering in the aggregate more than the number of shares of such series
specified by the Auction Agent in response to BD's inquiry.
2.3 AUCTION SCHEDULE; METHOD OF SUBMISSION OF ORDERS.
(a) The Auction Agent shall conduct Auctions 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 Fund, which consent shall not be
unreasonably withheld. The Auction Agent shall give written notice of any such
change to BD which shall have the right to review such change. Such notice shall
be received one Business Day prior to the first Auction Date on which any such
change shall be effective.
TIME EVENT
By 9:30 a.m. Auction Agent advises the Fund and the
Broker-Dealer of the applicable Maximum Rate
and the LIBOR Rate(s) and Treasury Index
Rate(s), as the case may be, used in
determining such Maximum Rate, as set forth in
Section 2.2(a) hereof.
9:30 a.m. - 1:30 p.m. Auction Agent assembles information
communicated to it by Broker-Dealer as
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TIME EVENT
provided in Section 9(d)(i) of the Auction
Procedures. Submission Deadline is 1:30 p.m.
Not earlier than Auction Agent makes determinations pursuant to
1:30 p.m. Section 9(d)(i) of the Auction Procedures.
By approximately Auction Agent advises the Fund of results of
3:30 p.m. Auction as provided in Section 9(d)(ii) of the
Auction Procedures. Submitted Bids and
Submitted Sell Orders are accepted and rejected
in whole or in part and AMPS are allocated as
provided in Section 9(e) of the Auction
Procedures. Auction Agent gives notice of
Auction results as set forth in paragraph 1 of
the Settlement Procedures.
(b) BD may designate one or more individuals in its organization
who will coordinate its procedures in connection with Auctions and purchases and
sales of shares of any series of AMPS.
(c) BD agrees to handle its customers' order in accordance with
its duties under applicable securities laws and rules.
(d) To the extent that pursuant to Section 9(e) of the Auction
Procedures of the Fund, BD continues to hold, sells or purchases a number of
shares that is fewer than the number of shares in an Order submitted by BD to
the Auction Agent in which BD designated itself as an Existing Holder or
Potential Holder in respect of customer Orders, BD shall make appropriate pro
rata allocations among its customers for which it submitted Orders of similar
tenor. If as a result of such allocations, any Beneficial Owner would be
entitled or required to sell, or any Beneficial Owner would be entitled or
required to purchase, a fraction of a AMPS on any Auction Date, BD shall, in
such manner as it shall determine in its sole discretion, round up or down the
number of AMPS to be purchased or sold on such Auction Date by any Beneficial
Owner or Potential Beneficial Owner on whose behalf BD submitted an Order so
that the number of shares so purchased or sold by each such Beneficial Owner or
Potential Beneficial Owner on such Auction Date shall be whole shares.
(e) BD shall submit Orders to the Auction Agent in writing in
substantially the form attached hereto as Exhibit A. BD shall submit separate
Orders to the Auction Agent for each Potential Holder or Existing Holder on
whose behalf BD is submitting an Order and shall not net or aggregate the Orders
of Potential Holders or Existing Holders on whose behalf BD is submitting
Orders.
(f) BD shall deliver to the Auction Agent a written notice,
substantially in the form attached hereto as Exhibit B, of transfers of AMPS
made through BD
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by an Existing Holder to another Person other than pursuant to an Auction and a
written notice, substantially in the form attached hereto as Exhibit C, of the
failure of any AMPS to be transferred to or by any Person that purchased or sold
AMPS through BD 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 next preceding the applicable Auction Date.
2.4 NOTICES.
(a) On each Auction Date, the Auction Agent shall notify BD by
telephone or facsimile (or other electronic means acceptable to both parties) of
the results of the Auction as set forth in paragraph (a) of the Settlement
Procedures. By approximately 11:30 a.m. on the Business Day next succeeding such
Auction Date, the Auction Agent shall notify BD in writing of the disposition of
all Orders submitted by BD in the Auction held on such Auction Date. 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 1:30 p.m., and as a result the notice set forth in this
Section 2.4 will occur earlier.
(b) BD shall notify each Existing Holder or Potential Holder on
whose behalf BD has submitted an Order as set forth in paragraph 2 of the
Settlement Procedures and take such other action as is required of BD pursuant
to the Settlement Procedures.
2.5 DESIGNATION OF SPECIAL RATE PERIOD.
(a) If the Board of Trustees of the Fund proposes to designate
any subsequent Rate Period of any series of AMPS of the Fund as a Special Rate
Period and the Fund delivers to its Auction Agent a notice of such proposed
Special Rate Period in the form of Exhibit C to the Auction Agency Agreement,
and BD is a Broker-Dealer for such series, such Auction Agent shall deliver such
notice to BD as promptly as practicable after its receipt of such notice from
the Fund.
(b) If the Board of Trustees of the Fund determines to designate
such succeeding subsequent Rate Period as a Special Rate Period, and the Fund
delivers to its Auction Agent a notice of such Special Rate Period in the form
of Exhibit D to the Auction Agency Agreement not later than 11:00 a.m. on the
second Business Day next preceding the first day of such proposed Special Rate
Period, and BD is a Broker-Dealer for such series, such Auction Agent shall
deliver such notice to BD not later than 3:00 p.m. on such second Business Day.
(c) If the Fund shall deliver to its Auction Agent a notice not
later than 11:00 a.m. on the second Business Day next preceding the first day of
any proposed Special Rate Period stating that the Fund has determined not to
exercise its option to designate such succeeding subsequent Rate Period as a
Special Rate Period, in the form of Exhibit E to the Auction Agency Agreement,
or shall fail to timely deliver either such notice or a notice in the form of
Exhibit F to the Auction Agency Agreement, and BD is a Broker-Dealer for such
series,
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such Auction Agent shall deliver a notice in the form of Exhibit F to the
Auction Agency Agreement to BD not later than 3:00 p.m. on such second Business
Day.
2.6 FAILURE TO DEPOSIT.
(a) If: (i) any Failure to Deposit shall have occurred with
respect to shares of any series of AMPS of the Fund during any Rate Period
thereof (other than any Special Rate Period consisting of more than 364 days or
any Rate Period succeeding any Special Rate Period consisting of more than 364
days during which a Failure to Deposit occurred that has not been cured), but,
prior to 12:00 Noon,
New York City time, on the fourth Business Day next
succeeding the date on which such Failure to Deposit occurred, such Failure to
Deposit shall have been cured in accordance with Section 2.8(c) of the Auction
Agency Agreement and the Fund shall have paid to the Auction Agent for such
series the applicable Late Charge as described in Section 2.8(a) of the Auction
Agency Agreement, then, if BD is a Broker-Dealer for such series, such Auction
Agent shall deliver a notice in the form of Exhibit F to the Auction Agency
Agreement by first-class mail, postage prepaid, to BD not later than one
Business Day after its receipt of the payment from the Fund curing such Failure
to Deposit and such Late Charge.
(b) If: (i) any Failure to Deposit shall have occurred with
respect to shares of any series of AMPS of the Fund during any Rate Period
thereof (other than any Special Rate Period consisting of more than 364 days or
any Rate Period succeeding any Special Rate Period consisting of more than 364
days during which a Failure to Deposit occurred but has not been cured), and,
prior to 12:00 Noon,
New York City time, on the fourth Business Day next
succeeding the date on which such Failure to Deposit occurred, such Failure to
Deposit shall not have been cured as described in Section 2.8(c) of the Auction
Agency Agreement or the Fund shall not have paid to the Auction Agent for such
series the applicable Late Charge described in Section 2.8(a) of the Auction
Agency Agreement; or (ii) any Failure to Deposit shall have occurred with
respect to shares of any series of AMPS of the Fund during a Special Rate Period
consisting of more than 364 days, or during any Rate Period thereof succeeding
any Special Rate Period of more than 364 days during which a Failure to Deposit
occurred that has not been cured, and, prior to 12:00 noon,
New York City time,
on the fourth Business Day preceding the Auction Date for the Rate Period
subsequent to such Rate Period, such Failure to Deposit shall not have been
cured as described in Section 2.8(c) of the Auction Agency Agreement of the Fund
shall not have paid to the Auction Agent for such series the applicable Late
Charge described in Section 2.8(a) of the Auction Agency Agreement; then such
Auction Agent shall deliver a notice in the form of Exhibit G to the Auction
Agency Agreement to the Broker-Dealers for such series as soon as practicable
following such fourth Business Day.
2.7 SERVICE CHARGE TO BE PAID TO BD.
(a) No later than 12:00 noon on each Dividend Payment Date
following each Auction, the Auction Agent will pay a service charge from funds
provided by the Fund to each Broker-Dealer on the basis of the purchase price of
AMPS placed by such Broker-Dealer at such Auction. The service charge shall be
(i) in the case of any Auction Date immediately preceding a seven-day or
twenty-eight day Rate Period, the product of (A) a fraction, the numerator of
which is the number of days in such Rate Period (calculated by
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counting the date of original issue of such shares to but excluding the next
succeeding dividend payment date of such shares) 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 AMPS for which the Auction is conducted and (ii)
in the case of any Special Rate Period, the amount determined by mutual consent
of the Fund and any such Broker-Dealers at the commencement of such Special Rate
Period, which shall be based upon a selling concession that would be applicable
to an underwriting of fixed or variable rate AMPS with a similar final maturity
or variable rate dividend period, respectively.
(b) If the Fund determines to change the rate at which the
Broker-Dealer Fee accrues, the Fund shall mail to the Auction Agent a notice
thereof within two Business Days of such change. Any change in the Broker-Dealer
Fee Rate shall be effective on the Auction Date next succeeding the Auction
Agent's receipt of notice of such change.
2.8 SETTLEMENT.
(a) If any Existing Holder selling AMPS in an Auction fails to
deliver such AMPS (by authorized book-entry), the BD of any Person that was to
have purchased AMPS in such Auction may deliver to such Person a number of AMPS
that is less than the number of AMPS that otherwise were to be purchased by such
Person. In such event, the number of AMPS to be so delivered shall be determined
by BD. Delivery of such lesser number of AMPS shall constitute good delivery.
Upon the occurrence of any such failure to deliver AMPS, BD shall deliver to the
Auction Agent a notice in the form attached hereto as Exhibit C. Notwithstanding
the foregoing provisions of this Section 2.8, any delivery or non delivery of
AMPS 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 2.2(d)(iii) of the Auction Agency
Agreement. The Auction Agent shall have no duty or liability with respect to
enforcement of this Section 2.8.
(b) Neither the Auction Agent nor the Fund shall have any
responsibility or liability with respect to the failure of an Existing Holder, a
Potential Holder or an Agent Member or any of them to deliver AMPS or to pay for
AMPS sold or purchased pursuant to the Auction Procedures or otherwise.
(c) Notwithstanding any provision of the Auction Procedures or
the Settlement Procedures to the contrary, in the event BD is an Existing Holder
with respect to shares of a series of AMPS and the Auction procedures provide
that BD shall be deemed to have submitted a Sell Order in an Auction with
respect to such shares if BD fails to submit an Order in that Auction with
respect to such shares, BD shall have no liability to any Person for failing to
sell such shares pursuant to such a deemed Sell Order if (i) such shares were
transferred by the beneficial owner thereof without notification of such
transfer in compliance with the Auction Procedures or (ii) BD has indicated to
the Auction Agent pursuant to Section 2.2(f) of this Agreement that, according
to BD's records, BD is not the Existing Holder of such shares.
(d) Notwithstanding any provision of the Auction Procedures or
the Settlement Procedures to the contrary, in the event an Existing Holder or
Beneficial Owner of
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shares of a series of AMPS with respect to whom a Broker-Dealer submitted a Bid
to the Auction Agent for such shares that was accepted in whole or in part, or
submitted or is deemed to have submitted a Sell Order for such shares that was
accepted in whole or in part, fails to instruct its Agent Member to deliver such
shares against payment therefore, partial deliveries of AMPS that have been made
in respect of Potential Holders' or Potential Beneficial Owners' Submitted Bids
for shares of such series that have been accepted in whole or in part shall
constitute good delivery to such Potential Holders and Potential Beneficial
Owners.
3. THE AUCTION AGENT
3.1 DUTIES AND RESPONSIBILITIES.
(a) The Auction Agent is acting solely as a non-fiduciary agent
for the Fund hereunder and owes no duties, fiduciary or otherwise, to any other
Person.
(b) The Auction Agent undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement, the Auction Agency
Agreement, Auction Procedures or the Settlement Procedures against the Auction
Agent.
(c) In the absence of willful misconduct or gross negligence on
its part, the Auction Agent shall not be liable for any action taken, suffered,
or omitted or for any error of judgment made by it in the performance of its
duties under this Agreement. The Auction Agent shall not be liable for any error
of judgment made in good faith unless the Auction Agent shall have been grossly
negligent in ascertaining or failing to ascertain the pertinent facts. In no
event shall the Auction Agent be liable for special, punitive, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Auction Agent has been advised of the likelihood
of such loss or damage and regardless of the form of action.
(d) The Auction Agent shall not be: (i) required to, and does
not, make any representations or have any responsibilities as to the validity,
accuracy, value or genuineness of any signatures or endorsements, other than its
own; (ii) obligated to take any legal action hereunder that might, in its
judgment, involve any expense or liability, unless it has been furnished with
indemnity satisfactory to the Auction Agent; and (iii) responsible for or liable
in any respect on account of the identity, Fund or rights of any Person (other
than itself and its agents and attorneys) executing or delivering or purporting
to execute or deliver any document under this Agreement or any
Broker-Dealer
Agreement.
3.2 RIGHTS OF THE AUCTION AGENT.
(a) The Auction Agent may conclusively rely and shall be fully
protected in acting or refraining from acting upon any communication authorized
by this Agreement and upon any written instruction, notice, request, direction,
consent, report, certificate, share certificate or other instrument, paper or
document delivered pursuant to this Agreement and reasonably believed by it to
be genuine. The Auction Agent shall not be liable for acting upon any
communication authorized by this Agreement (including, but not limited to, any
made by telephone, telecopier or other means of electronic communication
acceptable to the
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parties hereto) which the Auction Agent believes in good faith to have been
given by the Fund or by BD. The Auction Agent may record telephone
communications with BD.
(b) 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.
(c) The Auction Agent may consult with counsel of its choice,
and shall have no liability for acting or refraining from acting in accordance
with advice from such counsel, except as otherwise provided for in this
Agreement.
(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.
(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, 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.
3.3 AUCTION AGENT'S DISCLAIMER. The Auction Agent makes no
representation as to, and shall have no liability with respect to, the
correctness of the recitals in, or the validity, adequacy or accuracy of, this
Agreement, the Auction Agency Agreement, the Auction Procedures, the offering
material used in connection with the offer and sale of the AMPS or any other
agreement or instrument executed in connection with the transactions
contemplated herein or in any thereof. The Auction Agent shall have no
obligation or liability in respect of the registration or exemption therefrom of
the AMPS under federal or state securities laws in respect of the sufficiency or
the conformity of any transfer of the AMPS pursuant to the terms of the Auction
Agency Agreement, any Broker Dealer Agreement or any other document contemplated
hereby or thereby.
4. MISCELLANEOUS
4.1 TERMINATION. Any party may terminate this Agreement at any time
upon five (5) days' written notice to the other parties, which notice may be
given by facsimile as provided in Section 4.3 hereof; provided that the Auction
Agent will terminate this Agreement only pursuant to written directions from the
Fund to do so. This Agreement shall automatically terminate upon the redemption
of all outstanding AMPS or upon termination of the Auction Agency Agreement.
4.2 AGENT MEMBER.
(a) BD is, and shall remain for the term of this Agreement, a
member of, or participant in, the Securities Depository (or an affiliate of such
a member or participant).
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(b) BD represents that it (or if BD does not act as Agent
Member, one of its affiliates) shall make all dividend payments on the AMPS
available in same-day funds on each Dividend Payment Date to customers that use
BD or affiliate as Agent Member.
4.3 FORCE MAJEURE. No 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; acts
of terrorism; epidemics; riots; interruptions, loss or malfunctions or
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.
4.4 COMMUNICATIONS. Except for (i) communications authorized to be by
telephone pursuant to this Agreement or the Auction Procedures and (ii)
communications in connection with the Auctions (other than those expressly
required to be in writing), all notices, requests and other communications to
any party hereunder shall be in writing (for the purposes of this Agreement,
telecopy or other means of electronic communication acceptable to the parties
shall be deemed to be in writing) and shall be given to such party, addressed to
it, at its address, telecopy number set forth below and, where appropriate
reference the particular Auction to which such notice relates:
If to BD,
---------------------
addressed:
---------------------
---------------------
Attention:
-----------
Telephone No.:
-------
Facsimile No.:
-------
If to the Auction The Bank of
New York
Agent, addressed: 000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust: Dealing and Trading Group -
Auction Desk
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
If to the Fund, Dreman/Claymore Dividend & Income Fund
addressed: c/o Claymore Advisors, LLC
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxxx
Telephone No.: 000-000-0000
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Facsimile No.: 000-000-0000
or such other address or facsimile number as such party may hereafter specify
for such purpose by written notice to the other parties. Each such notice,
request or communication shall be effective when delivered at the address
specified herein. Communications shall be given on behalf of BD by a BD Officer,
on behalf of the Auction Agent by an Authorized Officer and on behalf of the
Fund by an Authorized Fund Officer. Telephone communications may be recorded.
4.5 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 inferred, between the parties relating to the subject matter
hereof.
4.6 BENEFITS. Nothing in this Agreement, express or implied, shall
give to any person, other than the Auction Agent, the Fund and BD and their
respective successors and permitted assigns, any benefit of any legal or
equitable right, remedy or claim under this Agreement.
4.7 AMENDMENT; WAIVER.
(a) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part, except
by a written instrument signed by a duly authorized representative of each of
the parties hereto.
(b) Failure of any party to this Agreement to exercise any right
or remedy hereunder in the event of a breach of this Agreement by any other
party shall not constitute a waiver of any such right or remedy with respect to
any subsequent breach.
4.8 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 the parties hereto. This Agreement may not be
assigned by any party hereto absent the prior written consent of the other
parties.
4.9 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.
4.10 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.
4.11 GOVERNING LAW. 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 that all actions
and proceedings
12
arising out of this Agreement or any of the transactions contemplated hereby
shall be brought in the County of New York and, in connection with any such
action or proceeding, submit to the jurisdiction of, and venue in, such County.
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 thereby.
13
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.
THE BANK OF NEW YORK
as Auction Agent
By:
-------------------------------
Name:
Title:
--------------------------
as Broker-Dealer
By:
-----------------------------
Name:
Title:
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
THE BANK OF NEW YORK
as Auction Agent
By:
-------------------------------
Name:
Title:
-----------------------
as Broker-Dealer
By:
-------------------------------
Name:
Title:
15
Exhibit A
To
BROKER-DEALER
AGREEMENT
AUCTION BID FORM
(Submit only one Order on this Order Form)
DREMAN/CLAYMORE DIVIDEND & INCOME FUND
Auction Market Preferred Shares ("AMPS")
To: The Bank of New York Date of Auction ____________
Corporate Trust Administration Series of AMPS (indicate by
000 Xxxxxx Xxxxxx, 0xx Xxxxx Number Designation)
Xxx Xxxx, Xxx Xxxx 00000 _______
Attention: Dealing and Trading Group
The undersigned Broker-Dealer submits the following Order on behalf of the
Bidder listed below:
Name of Bidder: __________________________________
Bidder placed the Order listed below covering the number of
shares indicated (complete only one blank):
_________________ number of AMPS now held by
Bidder (an Existing Holder), and the Order is a (check one):
/ / Hold Order; or
/ / Bid at a rate of ____%; or
/ / Sell Order;
-- or -
_________________ number of AMPS not now held by Bidder (a
Potential Holder), and the Order is a Bid at a rate of ______%
Notes:
(1) If submitting more than one Bid for one Bidder, use additional Order
Forms.
(2) If one or more Bids covering in the aggregate more than the outstanding
number of AMPS held by any Existing Holder are submitted, such Bids shall
be considered valid in the order of priority set forth in the Auction
Procedures.
(3) A Hold or Sell Order may be placed only by an Existing Holder covering a
number of AMPS not greater than the number of AMPS currently held by such
Existing Holder.
(4) Potential Holders may make Bids only, each of which must specify a rate.
If more than one Bid is submitted on behalf of any Potential Holder, each
Bid submitted shall be a separate Bid with the rate specified.
(5) Bids may contain no more than three figures to the right of the decimal
point (.001 of 1%).
(6) An Order must be submitted in whole AMPS with an aggregate liquidation
preference of $25,000.
Name of Broker-Dealer:
-----------------------
By:
--------------------------
A-1
Exhibit B
To
BROKER-DEALER
AGREEMENT
(To be used only for transfers made other than
pursuant to an Auction)
TRANSFER FORM
DREMAN/CLAYMORE DIVIDEND & INCOME FUND
Auction Market Preferred Shares ("AMPS")
Series _____ AMPS
(indicate by Number Designation)
We are (check one):
/ / the Existing Holder named below; or
/ / the Broker-Dealer for such Existing Holder; or
/ / the Agent Member for such Existing Holder.
We hereby notify you that such Existing Holder will transfer
___ AMPS to ____________________.
DREMAN/CLAYMORE
DIVIDEND & INCOME FUND
By:
-----------------------------------
Name:
Title:
(Name of Existing Holder)
(Name of Broker-Dealer)
(Name of Agent Member)
By:
-----------------------------------
Name:
Title:
B-1
Exhibit C
To
BROKER-DEALER
AGREEMENT
(To be used only for failures to deliver
AMPS sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
DREMAN/CLAYMORE DIVIDEND & INCOME FUND
Auction Market Preferred Shares ("AMPS")
Series _____ AMPS
(indicate by Number Designation)
Complete either I. or II.
I. We are a Broker-Dealer for ______________ (the "Purchaser"),
which purchased ____ AMPS in the Auction held on _______________
from the seller of such AMPS.
II. We are a Broker-Dealer for _____________ (the "Seller"), which
sold ____ AMPS in the Auction held on ____________________ to
the purchaser of such AMPS.
We hereby notify you that (check one):
/ / the Seller failed to deliver such AMPS to the Purchaser; or
/ / the Purchaser failed to make payment to the Seller upon delivery
of such AMPS.
Name:
-------------------------------
(Name of Broker-Dealer)
By:
---------------------------------
Printed Name:
Title:
C-1
Capitalized terms used in this letter, unless otherwise defined herein,
shall have the meanings set forth in the Offering Documents.
(Name of Purchaser)
By:
-----------------------------------
Name:
Title:
Address:
------------------------------
--------------------------------------
--------------------------------------
Dated:
S-1
