EXHIBIT k.4
XXXXXXXX-XXXXXXXXX CONVERTIBLE & INCOME FUND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
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FORM OF BROKER-DEALER AGREEMENT
dated as of , 2003
Relating to
Auction Preferred Shares
Series A, B, C, D and E
of
XXXXXXXX-XXXXXXXXX CONVERTIBLE & INCOME FUND
----------
[BROKER-DEALER]
BROKER-DEALER AGREEMET
This Broker-Dealer Agreement dated as of _______________, 2003 is
between Deutsche Bank Trust Company Americas, a New York banking corporation
(the "Auction Agent") (not in its individual capacity, but solely as agent of
Xxxxxxxx-Xxxxxxxxx Convertible & Income Fund (the "Fund"), pursuant to authority
granted to it in the Auction Agency Agreement dated as of _______________, 2003
between the Fund and the Auction Agent (the "Auction Agency Agreement")) and
[Broker-Dealer] (together with its successors and assigns, "BD").
The Fund proposes to issue an aggregate of preferred shares, par value
$0.00001 per share, liquidation preference $25,000 per share, designated as
Auction Preferred Shares, Series A, Auction Preferred Shares, Series B, Auction
Preferred Shares, Series C, Auction Preferred Shares, Series D, and Auction
Preferred Shares, Series E (the "Preferred Shares"), pursuant to the Fund's
Second Amended and Restated Bylaws (as defined below).
As provided in and subject to the Fund's Second Amended and Restated
Bylaws, for each series of Preferred Shares then outstanding, the Applicable
Rate for Preferred Shares for each subsequent Dividend Period shall be equal to
the rate per annum that results from an Auction for Outstanding Preferred Shares
on the respective Auction Date therefor next preceding the period from and after
the Date of Original Issue to and including the last day of the initial Dividend
Period. The Board of Trustees of the Fund has adopted a resolution 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 Fund 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 BD agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1. Terms Defined by Reference to the Second Amended and Restated
Bylaws.
Capitalized terms used herein but not defined herein shall have the
respective meanings specified in the Second Amended and Restated Bylaws.
1.2. Terms Defined Herein.
As used herein and in the Settlement Procedures (as defined below), 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 for
conducting Auctions that are set forth in Section 11.10 of the Second Amended
and Restated Bylaws.
(c) "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 assigned to its Corporate Trust &
Agency Services and designated as an "Authorized Officer" for purposes of this
Agreement in a communication to BD.
(d) "BD Officer" shall mean each officer or employee of BD
designated as a "BD Officer" for purposes of this Agreement in a 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) "Second Amended and Restated Bylaws" shall mean the Second
Amended and Restated Bylaws of the Fund in effect at the time the Registration
Statement relating to the Preferred Shares is declared effective by the
Securities and Exchange Commission, specifying the powers, preferences and
rights of the Preferred Shares.
(g) "Settlement Procedures" shall mean the Settlement Procedures
attached hereto as Exhibit A.
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) Sections I and III hereof shall be read in conjunction with
Section 11.10 of Article 11 of the Second Amended and Restated Bylaws and in the
event of any conflict with Section 11.10 of Article 11 of the Second Amended and
Restated Bylaws, then Section 11.10 of Article 11 of the Second Amended and
Restated Bylaws shall take precedence.
II. NOTIFICATION OF DIVIDEND.
The provisions contained in Section 11.2(c)(iii) of the Second Amended
and Restated Bylaws concerning the notification of a Special Dividend Period
will be followed by the Auction Agent and BD, and the provisions contained
therein are incorporated herein by reference in their
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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.
III. THE AUCTION.
3.1. 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 Preferred Shares, for each 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
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 set forth fully herein.
(c) BD agrees to act as, and assumes the obligations of and
limitations and restrictions placed upon, a Broker-Dealer under this Agreement.
BD understands that other Persons meeting the requirements specified in the
definition of "Broker-Dealer" contained in Section 11.1(a) of the Second Amended
and Restated Bylaws may execute a Broker-Dealer Agreement and participate as
Broker-Dealers in Auctions.
(d) BD and other Broker-Dealers may participate in Auctions for
their own accounts. However, the Fund, by notice to BD 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
Preferred Shares, the Auction Agent shall advise BD by telephone or other
electronic means of communication acceptable to the parties 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, the Auction Agent, by such means as the
Auction Agent reasonably deems practicable, shall give notice of such change to
BD 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, BD promptly shall notify customers of BD
that BD believes are Beneficial Owners of Preferred Shares of such change in the
Auction Date.
(c) The Auction Agent from time to time may request BD to
provide it with a list of the respective customers BD believes are Beneficial
Owners of Preferred Shares. BD 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 Fund; and
such information shall not be used by the Auction Agent or its officers,
employees, agents or
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representatives for any purpose other than such purposes as are described
herein. The Auction Agent shall transmit any list of customers BD believes are
Beneficial Owners of Preferred 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 Fund and the Auction Agent shall normally conduct
Auctions weekly (usually Monday for Series A, Tuesday for Series B, Wednesday
for Series C, Thursday for Series D and Friday for Series E) in accordance with
the schedule set forth below.
Time Event
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By 9:30 A.M. Auction Agent shall advise the Fund 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. Auction Agent shall assemble information
communicated to it by Broker-Dealers as
provided in Section 11.10(c) of the Second
Amended and Restated Bylaws. Submission
Deadline is 1:00 P.M.
Not earlier than 1:00 P.M. Auction Agent shall make determinations
pursuant to Section 11.10(d)(i) of the Second
Amended and Restated Bylaws.
By approximately 3:00 P.M. Auction Agent shall advise the Fund of the
results of the Auction as provided in Section
11.10(d)(ii) of the Second Amended and
Restated Bylaws.
Submitted Bids and Submitted Sell Orders will
be accepted and rejected in whole or in part
and Preferred Shares will be allocated as
provided in Section 11.10(e) of the Second
Amended and Restated Bylaws.
Auction Agent shall give notice of the Auction
results as set forth in Section 3.4(a) hereof.
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(b) BD 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 11.10(b)(i) of the Second Amended and
Restated Bylaws.
(c) BD shall submit Orders to the Auction Agent in writing in
substantially the form attached hereto as Exhibit B. BD shall submit separate
Orders to the Auction Agent for each Potential Beneficial Owner or Beneficial
Owner on whose behalf BD is submitting an Order and shall not net or aggregate
the Orders of Potential Beneficial Owners or Beneficial Owners on whose behalf
BD is submitting Orders.
(d) BD shall deliver to the Auction Agent (i) a written notice,
substantially in the form attached hereto as Exhibit C, of transfers of
Preferred Shares, made through BD by an Existing Holder 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 Preferred Shares to be
transferred to or by any Person that purchased or sold Preferred Shares 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 succeeding the applicable Auction Date.
3.4. Notice of Auction Results.
(a) On each Auction Date, the Auction Agent shall notify BD by
telephone, facsimile or other electronic means as acceptable to the parties of
the Auction results as set forth in paragraph (a) of the Settlement Procedures.
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.
(b) BD shall notify each Beneficial Owner, Potential Beneficial
Owner, Existing Holder or Potential Holder on whose behalf BD has submitted an
Order as set forth in paragraph (b) of the Settlement Procedures, and take such
other action as is required of BD pursuant to the Settlement Procedures.
If any Beneficial Owner or Existing Holder selling Preferred Shares in
an Auction fails to deliver such shares, the Broker-Dealer of any Person that
was to have purchased Preferred Shares in such Auction may deliver to such
Person a number of whole Preferred Shares that is less than the number of shares
that otherwise was to be purchased by such Person. In such event, the number of
Preferred 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(d)(ii) hereof.
Notwithstanding the foregoing terms of this Section 3.4(b), any delivery or
non-delivery of Preferred 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(d) hereof.
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3.5. Service Charge to be Paid to BD.
Not later than 3:00 P.M. on each Dividend Payment Date, the Auction
Agent after each Auction will pay a service charge from funds provided by the
Fund to BD on the basis of the purchase price of Preferred Shares placed by BD
at such Auction. The service charge shall be (i) in the case of any Auction Date
immediately preceding a 7-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 365, times (B) 1/4 of 1%, times (C)
$25,000 times (D) the sum of (I) the aggregate number of Preferred Shares placed
by BD in the applicable Auction that either (x) the subject of a Submitted Bid
of a Beneficial Owner submitted by BD and continued to be held as a result of
such submission or (y) the subject of a Submitted Bid of a Potential Beneficial
Owner submitted by BD and were purchased as a result of such submission plus
(II) the aggregate number of Preferred Shares subject to valid Hold Orders
(determined in accordance with Section 11.10(b) of the Second Amended and
Restated Bylaws) submitted to the Auction Agent by BD plus (III) the number of
Preferred Shares deemed to be subject to Hold Orders by Beneficial Owners
pursuant to Section 11.10(b) of the Second Amended and Restated Bylaws that were
acquired by BD for its own account or were acquired by such Beneficial Owners
through BD; and (ii) in the case of any Special Dividend Period the amount
determined by mutual consent of the Fund and BD and shall be based upon a
selling concession that would be applicable to an underwriting of fixed or
variable rate preferred shares with a similar final maturity or variable rate
dividend period, respectively, at the commencement of the Dividend Period with
respect to such Auction.
IV. THE AUCTION AGENT.
4.1. Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the Fund
hereunder and owes no fiduciary duties to any other Person by reason of this
Agreement.
(b) The 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.
4.2. 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 by this
Agreement 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 by this Agreement which
the Auction Agent reasonably believes in good faith to have been given by the
Fund or by BD.
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The Auction Agent may record telephone communications with the Fund or with BD
or with both.
(b) The Auction Agent may consult with counsel of its own
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 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.
(d) The Auction Agent may perform its duties and exercise its
rights hereunder either directly or by or through agents or attorneys.
4.3. Auction Agent's Disclaimer.
The Auction Agent makes no representation as to the validity or
adequacy of this Agreement or the Preferred Shares.
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 [Broker-Dealer], neither [Broker-Dealer] nor the Auction Agent
may terminate this Agreement without first obtaining the prior written consent
of the Fund to such termination, which consent shall not be withheld
unreasonably.
5.2. Participant in Securities Depository; Payment of Dividends in
Same-Day Funds.
(a) BD is, 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) BD represents that it (or if BD does not act as Agent
Member, one of its affiliates) shall make all dividend payments on the Preferred
Shares available in same-day funds on each Dividend Payment Date to customers
that use BD (or its affiliate) as Agent Member.
5.3. Agent Member.
At the date hereof, BD is a participant of the Securities Depository.
5.4. 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 the Auctions (other than those expressly required to be in
writing), all notices, requests and other
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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
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to the BD,
addressed to:
____________________________________
____________________________________
____________________________________
____________________________________
Telecopier Number: _________________
Telephone Number: __________________
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 BD by a BD Officer and on behalf of
the Auction Agent by an Authorized Officer. BD 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 Fund, which is a third-party beneficiary of this
Agreement, the Auction Agent and BD 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 and by the Fund.
(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.
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5.8. Successors and Assigns.
(a) This Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, the respective successors and permitted assigns of
each of BD and the Auction Agent. This Agreement may not be assigned by either
party hereto absent the prior written consent of the other party; provided,
however, that this Agreement may be assigned by the Auction Agent to a successor
Auction Agent selected by the Fund without the consent of BD.
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.
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.
[Signature pages follow]
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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
By:_______________________
Name:
Title:
[BROKER-DEALER]
By:_______________________
Name:
Title:
EXHIBIT A
SETTLEMENT PROCEDURES
Capitalized terms used herein shall have the respective meanings
specified in the Second Amended and Restated Bylaws.
(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 Preferred 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
Preferred Shares, if any, to be purchased by such Potential Beneficial
Owner;
(v) if the aggregate number of Preferred 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 Preferred 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 Preferred 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 Preferred Shares to be purchased
by all Potential Beneficial Owners on whose behalf such Broker-Dealer
submitted a Bid exceeds the aggregate number of Preferred 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 Preferred 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 Preferred Shares.
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(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 Preferred
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
Preferred Shares to be sold pursuant to such Order against payment
therefor and advise any such Beneficial Owner that will continue to
hold Preferred 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 Preferred 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
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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 Preferred 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 Preferred 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 Preferred 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.
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EXHIBIT B
DEUTSCHE BANK TRUST COMPANY AMERICAS
AUCTION BID FORM
Submit To: Issue:
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Deutsche Bank Trust Company Americas Xxxxxxxx-Xxxxxxxxx Convertible
Corporate Trust and Agency Group & Income FundAuction Preferred
Four Albany Street Shares, Series X, X, X, X xxx X
Xxx Xxxx, XX 00000 ("Preferred Shares")
Attention: Auction Rate Securities
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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 ________________
Series ______ SELL __________________________
POTENTIAL BENEFICIAL OWNER
# of shares ___________
BID at rate of __________
Notes:
(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.
NAME OF BROKER-DEALER ________________________________
Authorized Signature _________________________________
EXHIBIT C
(Note: To be used only for transfers made other than pursuant to an Auction)
TRANSFER FORM
Re: Xxxxxxxx-Xxxxxxxxx Convertible & Income Fund
Auction Preferred Shares, Series A, B, C, D and E ("Preferred
Shares")
We are (check one):
[ ] the Existing Holder named below;
[ ] the Broker-Dealer for such Existing Holder; or
[ ] the Agent Member for such Existing Holder.
We hereby notify you that such Beneficial Owner has transferred
________ Series __ Preferred 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
PREFERRED SHARES SOLD PURSUANT TO AN AUCTION)
NOTICE OF A FAILURE TO DELIVER
We are a Broker-Dealer for ___________________ (the "Purchaser"), which
purchased ________ Series __ Preferred Shares of Xxxxxxxx-Xxxxxxxxx Convertible
& Income Fund in the Auction held on ____________________ from the 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: ________________________
(Name of Broker-Dealer)
By: __________________________
Printed Name:
Title:
