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EXHIBIT k.3
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AUCTION AGENCY AGREEMENT
between
NUVEEN SENIOR INCOME FUND
and
BANKERS TRUST COMPANY
Dated as of , 2000
Relating to
TAXABLE AUCTIONED PREFERRED SHARES
of
NUVEEN SENIOR INCOME FUND
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TABLE OF CONTENTS
Page
1. Definitions and Rules of Construction....................................................................1
1.1 Terms Defined by Reference to Statement.........................................................1
1.2 Terms Defined Herein............................................................................1
1.3 Rules of Construction...........................................................................2
2. The Auction..............................................................................................2
2.1 Purpose; Incorporation by Reference of Auction Procedures and Settlement Procedures.............2
2.2 Preparation of Each Auction; Maintenance of Registry of Beneficial Owners.......................2
2.3 Information Concerning Rates....................................................................4
2.4 Auction Schedule................................................................................4
2.5 Designation of Dividend Period..................................................................5
2.6 Notice of Auction Results.......................................................................5
2.7 Broker-Dealers..................................................................................6
2.8 Ownership of TAPS...............................................................................6
2.9 Access to and Maintenance of Auction Records....................................................6
2.10 Dividend and Redemption Price Deposit...........................................................6
3. The Auction Agent as Dividend and Redemption Price Disbursing Agent......................................6
4. The Auction Agent as Transfer Agent and Registrar........................................................7
4.1 Issue of Share Certificates.....................................................................7
4.2 Registration of Transfer of Shares..............................................................7
4.3 Removal of Legend on Restricted Shares..........................................................7
4.4 Lost Share Certificates.........................................................................7
4.5 Disposition of Canceled Certificates; Record Retention..........................................7
4.6 Share Transfer Books............................................................................7
4.7 Return of Funds.................................................................................7
5. Representations and Warranties of the Fund...............................................................7
6. The Auction Agent........................................................................................8
6.1 Duties and Responsibilities.....................................................................8
6.2 Rights of the Auction Agent.....................................................................8
6.3 Auction Agent's Disclaimer......................................................................9
6.4 Compensation, Expenses and Indemnification......................................................9
7. Miscellaneous............................................................................................9
7.1 Term of Agreement...............................................................................9
7.2 Communications.................................................................................10
7.3 Entire Agreement...............................................................................10
7.4 Benefits.......................................................................................10
7.5 Amendment; Waiver..............................................................................10
7.6 Successors and Assigns.........................................................................11
7.7 Severability...................................................................................11
7.8 Execution in Counterparts......................................................................11
7.9 Governing Law..................................................................................11
7.10 Declaration of Trust...........................................................................11
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EXHIBITS
EXHIBIT A - Form of Broker-Dealer Agreement
EXHIBIT B - Settlement Procedures
EXHIBIT C - Form of Statement
EXHIBIT D - Form of Notice of Auction Dates
EXHIBIT E - Form of Notice of Proposed Designation of Special Rate Period
EXHIBIT F - Form of Notice of Designation of Special Rate Period
EXHIBIT G - Form of Notice of Determination Not to Designate Special Rate Period
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AUCTION AGENT AGREEMENT dated as of , 2000 between NUVEEN
SENIOR INCOME FUND, a Massachusetts business trust (the "Fund"), and BANKERS
TRUST COMPANY, a New York banking corporation (the "Auction Agent").
WHEREAS, the Fund proposes to issue a series of preferred shares, par value
$.01 per share, liquidation preference $25,000 per share, designated Taxable
Auctioned Preferred Shares, Series TH ("TAPS Series TH") and may in the future
designate additional series of Taxable Auctioned Preferred Shares (together with
the TAPS Series TH, referred to as the "TAPS") pursuant to the Statement (as
hereinafter defined), and desires that the Auction Agent perform certain duties
in connection with the TAPS upon the terms and subject to the conditions of this
Agreement, and hereby appoints the Auction Agent to act in the capacities set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Fund and the Auction Agent agree as follows:
1. Definitions and Rules of Construction.
1.1 Terms Defined by Reference to Statement. 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:
(a) "Adviser" shall mean Nuveen Senior Loan Asset Management, Inc.
(b) "Agent Member" of any Person shall mean the member of, or
participant in, the Securities Depository.
(c) "Auction" shall have the meaning specified in Section 2.1 hereof.
(d) "Auction Procedures" shall mean the auction procedures
constituting Part II of the Statement.
(e) "Authorized Officer" shall mean each Senior Vice President, Vice
President, Assistant Vice President, Assistant Treasurer and Assistant
Secretary of the Auction Agent assigned to its Corporate Trust and Agency
Group and every other officer or employee of the Auction Agent designated
as an "Authorized Officer" for purposes hereof in a communication to the
Fund.
(f) "Broker-Dealer Agreement" shall mean each agreement between the
Auction Agent as agent for the Fund and a Broker-Dealer substantially in
the form attached hereto as Exhibit A.
(g) "Fund Officer" shall mean the Chairman of the Board of Trustees of
the Fund, the President, each Vice President (whether or not designated by
a number or word or words added before or after the title "Vice
President"), the Secretary, the Treasurer, each Assistant Secretary and
each Assistant Treasurer of the Fund and every other officer or employee of
the Fund designated as a "Fund Officer" for purposes hereof in a notice to
the Auction Agent.
(h) "Person" means and includes an individual, a partnership, a
corporation, a trust, an unincorporated association, a joint venture or
other entity or a government or any agency or political subdivision
thereof.
(i) "Settlement Procedures" shall mean the Settlement Procedures
attached hereto as Exhibit C.
(j) "Statement" shall mean the Statement Establishing and Fixing the
Rights and Preferences of Taxable Auctioned Preferred Shares (the
"Statement") designating the TAPS Series TH and any additional series of
TAPS as may be designated at some future time, attached hereto as Exhibit
C.
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(k) "Underwriter" shall mean PaineWebber Incorporated and any other
person named as an underwriter of the TAPS in the Underwriting Agreement or
any schedule thereto.
(l) "Underwriting Agreement" shall mean the Underwriting Agreement
dated , 2000 among the Fund, the Underwriter and the Adviser.
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.
2. The Auction.
2.1 Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) The Statement provide that the Applicable Rate per annum for each
series of TAPS for each Dividend Period after the initial Dividend Period
with respect to each series of TAPS shall, except under certain conditions,
be equal to the rate per annum that a bank or trust company appointed by
the Fund advises has resulted on the Business Day preceding the first day
of such Dividend Period from implementation of the Auction Procedures for
such series. Each periodic operation of the Auction Procedures is
hereinafter referred to as an "Auction." The Board of Trustees has adopted
a resolution appointing Bankers Trust Company as Auction Agent for purposes
of the Auction Procedures for each series of the TAPS. The Auction Agent
accepts such appointment and agrees to follow the procedures set forth in
this Section 2 and the Auction Procedures for the purpose of determining
the Applicable Rate for each series of TAPS for each Dividend Period
thereof for which the Applicable Rate is to be determined by 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 hereof to the same extent as if
such provisions were fully set forth herein.
2.2 Preparation of Each Auction; Maintenance of Registry of Beneficial
Owners.
(a) Not later than seven days prior to the first Auction Date for any
series of TAPS, the Fund shall provide the Auction Agent with a list of the
Broker-Dealers. Not later than seven days prior to any Auction Date for any
series of TAPS for which any change in such list of Broker-Dealers is to be
effective, the Fund will notify the Auction Agent in writing of such change
and, if any such change involves the addition of a Broker-Dealer to such
list, shall cause to be delivered to the Auction Agent for execution by the
Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer;
provided, however, that if the Fund proposes to designate any Special Rate
Period of any series of TAPS pursuant to Section 4 of Part I of the
Statement, not later than 11:00 A.M., New York City time, on the Business
Day next preceding the Auction next preceding the first day of such Special
Rate Period, upon the written request of the Auction Agent, the Fund shall
provide the Auction Agent with a list of the Broker-Dealers for such
series. The Auction Agent and the Fund shall have entered into a
Broker-Dealer Agreement with each Broker-Dealer prior to the participation
of any such Broker-Dealer in any Auction.
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(b) In the event that any Auction Date for any series of TAPS shall be
changed after the Auction Agent shall have given the notice referred to in
clause [(vi) (vii)] of paragraph (a) of the Settlement Procedures, or after the
notice referred to in Section 2.5(a) hereof, if applicable, the Auction Agent,
by such means as the Auction Agent deems practicable, shall give notice of such
change to the Broker-Dealers for such series not later than the earlier of 9:15
A.M. on the new Auction Date or 9:15 A.M. on the old Auction Date.
(c) (i) The Auction Agent shall maintain a registry of the beneficial
owners of the shares of each series of TAPS who shall constitute Existing
Holders of shares of such series of TAPS for purposes of Auctions and shall
indicate thereon the identity of the respective Broker-Dealer of each Existing
Holder, if any, on whose behalf such Broker-Dealer submitted the most recent
Order in any Auction which resulted in such Existing Holder continuing to hold
or purchasing shares of such series of TAPS. The Auction Agent shall keep such
registry current and accurate. The Fund shall provide or cause to be provided to
the Auction Agent at or prior to the Date of Original Issue of each series of
TAPS a list of the initial Existing Holders of the shares of each such series,
the number of shares purchased by each such Existing Holder and the respective
Broker-Dealer of each such Existing Holder or the affiliate thereof through
which each such Existing Holder purchased such shares. The Auction Agent shall
advise the Fund in writing as to whether the number of Existing Holders is 500
or more [or any Existing Holder owns 5% or more of the outstanding shares of any
series of TAPS]. The Auction Agent may rely upon, as conclusive evidence of the
identities of the Existing Holders of shares of any series of TAPS, (A) such
list, (B) the results of Auctions (C) notices from any Existing Holder, the
Agent Member of any Existing Holder or the Broker-Dealer of any Existing Holder
as described in the first sentence of Section 2.2(c)(iii) hereof and (D) the
results of any procedures approved by the Fund that have been devised for the
purpose of determining the identities of Existing Holders in situations where
shares of TAPS may have been transferred without compliance with any restriction
on the transfer thereof set forth in the Auction Procedures.
(ii) In the event of any partial redemption of any series of TAPS, the
Auction Agent shall, at least two Business Days prior to the next Auction
for such series, request each Broker-Dealer to provide the Auction Agent
with a list of Persons who such Broker-Dealer believes should remain
Existing Holders after such redemption based upon inquiries of those
Persons such Broker-Dealer believes are Beneficial Owners as a result of
the most recent Auction and with respect to each such Person, the number of
shares of TAPS of such series such Broker-Dealer believes are owned by such
Person after such redemption. In the absence of receiving any such
information from any Broker-Dealer, the Auction Agent may continue to treat
the Persons listed in its registry of Existing Holders as the beneficial
owner of the number of shares of TAPS of such series shown in such
registry.
(iii) The Auction Agent shall be required to register a transfer of
shares of TAPS of any series from an Existing Holder of such shares of TAPS
only if such transfer is to another Existing Holder, or other Person if
permitted by the Fund, and only if such transfer is made (A) pursuant to an
Auction, (B) the Auction Agent has been notified in writing (I) in a notice
substantially in the form of Exhibit C to the Broker-Dealer Agreements by a
Broker-Dealer of such transfer or (II) in a notice substantially in the
form of Exhibit D to the Broker-Dealer Agreements by the Broker-Dealer of
any Existing Holder, or other Person if permitted by the Fund, that
purchased or sold such shares of TAPS in an Auction of the failure of such
shares of TAPS to be transferred as a result of such Auction or (C)
pursuant to procedures approved by the Fund that have been devised for the
purpose of determining the identities of Existing Holders in situations
where shares of TAPS may have been transferred without compliance with any
restriction on the transfer thereof set forth in the Auction Procedures.
The Auction Agent is not required to accept any such notice for an Auction
unless it is received by the Auction Agent by 3:00 P.M. on the Business Day
preceding such Auction.
(d) The Auction Agent may request the Broker-Dealers, as set forth in the
Broker-Dealer Agreements, to provide the Auction Agent with a list of Persons
who such Broker-Dealer believes should be Existing Holders based upon inquiries
of those Persons such Broker-Dealer believes are Beneficial Owners as a result
of the most recent Auction and with respect to each such Person, the number of
shares of such series
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of TAPS such Broker-Dealer believes to be owned by such Person. The Auction
Agent shall keep confidential such registry of Existing Holders and shall
not disclose the identities of the Existing Holders of such shares of TAPS
to any Person other than the Fund and the Broker-Dealer that provided such
information.
2.3 Information Concerning Rates.
(a) On each Auction Date, the Auction Agent shall determine the AA
Composite Commercial Paper Rate or the Treasury Index Rate, as the case may
be, and the Minimum Rate and Maximum Rate. If the AA Composite Commercial
Paper Rate or the Treasury Index Rate, as the case may be, is not quoted on
an interest basis, if the rate obtained by the Auction Agent is quoted on a
discount basis, or if the rate obtained by the Auction Agent is quoted on
another basis the Auction Agent shall convert the quoted rate to an
interest rate after consultation with the Fund as to the method of such
conversion. Not later than 9:30 A.M. on each Auction Date the Auction Agent
shall notify the Fund and the Broker-Dealers of the Minimum Rate and
Maximum Rate so determined and the AA Composite Commercial Paper Rate or
the Treasury Index Rate, as the case may be, used to make such
determination.
(b) [If any AA Composite Commercial Paper Rate is to be based on rates
supplied by Commercial Paper Dealers and one or more of the Commercial
Paper Dealers shall not provide a quotation for the determination of such
AA Composite Commercial Paper Rate, the Auction Agent shall immediately
notify the Fund so that the Fund can determine whether to select a
substitute Commercial Paper Dealer or substitute Commercial Paper Dealers
to provide the quotation or quotations not being supplied by any Commercial
Paper Dealer or Commercial Paper Dealers. The Fund shall promptly advise
the Auction Agent of any such selection.]
(c) [If any Treasury Index Rate is to be based on rates supplied by
U.S. Government Securities Dealers and one or more of the U.S. Government
Securities Dealers shall not provide a quotation for the determination of
such Treasury Rate, the Auction Agent shall immediately notify the Fund so
that the Fund can determine whether to select a Substitute U.S. Government
Securities Dealer or Substitute U.S. Government Securities Dealers to
provide the quotation or quotations not being supplied by any U.S.
Government Securities Dealers. The Fund shall promptly advise the Auction
Agent of any such selection.]
2.4 Auction Schedule. The Auction Agent shall conduct Auctions for each
series of TAPS in accordance with the schedule set forth below. Such schedule
may be changed by the Auction Agent with the consent of the Fund, which consent
shall not be unreasonably withheld or delayed. The Auction Agent shall give
written notice of any such change to each Broker-Dealer. Such notice shall be
given prior to the close of business on the Business Day next preceding the
first Auction Date on which any such change shall be effective.
(AA)
Time Event
By 9:30 A.M. Auction Agent advises the Fund and Broker-Dealers of the
applicable Minimum Rate and Maximum Rate and the Reference
Rate(s) used in determining such Minimum Rate and Maximum
Rate as set forth in Section 2.3(a) hereof.
9:30 A.M. - 1:30 P.M. Auction Agent assembles information communicated to it by
Broker-Dealers as provided in Section 2(a) of the Auction
Procedures. Submission Deadline is 1:30 P.M.
Not earlier than 1:30 P.M. Auction Agent makes determinations pursuant to Section 3(a) of the
Auction Procedures.
By approximately 3:00 P.M. Auction Agent advises Fund of results of Auction as provided in
Section 3(b) of the Auction Procedures.
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Time Event
Submitted Bids and Submitted Sell Orders are accepted and
rejected and shares of TAPS allocated as provided in Section 4 of
the Auction Procedures. Auction Agent gives notice of Auction
results as set forth in paragraph(a) of the Settlement Procedures.
(AA)
The Auction Agent shall follow the notification procedures set forth in
paragraph (a) of the Settlement Procedures.
2.5 Designation of Dividend Period.
(a) The Statement provide that, subject to the Fund's option to
designate a Special Rate Period as referred to in paragraph (b) of this
Section 2.5, (i) the Dividend Period (other than the initial Dividend
Period) for each series of TAPS will be a Standard Rate Period. Any such
designation of a Special Rate Period shall be effective only if (i) notice
thereof shall have been given as provided herein, (ii) any failure to pay
in a timely manner to the Auction Agent the full amount of any dividend on,
or the redemption price of, the TAPS shall have been cured, (iii)
Sufficient Clearing Bids shall have existed in an Auction held on the
Auction Date immediately preceding the first day of such proposed Dividend
Period other than a Standard Rate Period, (iv) if the Fund shall have
mailed a Notice of Redemption with respect to any shares, the Redemption
Price with respect to such shares shall have been deposited with the
Auction Agent, and (v) in the case of a Special Rate Period, the Fund has
provided notice and an TAPS Basic Maintenance Report to Moody's (if Xxxxx'x
is then rating the TAPS).
(b) Pursuant to the Statement, the Fund may, at its option, designate
a Special Rate Period for any series of TAPS in the manner described below
and in Section 4 of Part I of the Statement. If the Fund proposes to
designate any succeeding Special Rate Period the Fund shall deliver to the
Auction Agent:
(i) A notice of such proposed Special Rate Period in the form of
Exhibit F hereto not less than 7 nor more than 30 days prior to the
first day of such proposed Special Rate Period. The Auction Agent on
behalf of the Fund shall deliver such notice by first-class mail,
postage prepaid, to each Existing Holder of shares of such series of
TAPS at the address set forth for such Existing Holder in the records
of the Auction Agent and to the Broker-Dealers for such series as
promptly as practicable after its receipt of such notice from the
Fund.
(ii) A notice in the form of Exhibit G hereto not later than 3:00
P.M. on the second Business Day next preceding the first day of such
proposed Special Rate Period, of either (x) its determination, subject
to certain conditions, to proceed with such Special Rate Period, in
which case the Fund shall specify the terms of the Specific Redemption
Provisions, if any, or (y) its determination not to proceed with such
Special Rate Period in which latter event the succeeding Dividend
Period shall be a Standard Rate Period. The Auction Agent shall
promptly deliver such notice to the Broker-Dealers, but in no event
later than 3:00 P.M. on the date of such notice.
(iii) If the Fund fails to deliver either such notice with
respect to any designation of any proposed Special Rate Period to the
Auction Agent by 3:00 P.M., New York City time, on the second Business
Day next preceding the first day of such proposed Special Rate Period,
the Fund shall be deemed to have delivered a notice to the Auction
Agent with respect to such Dividend Period to the effect that it has
determined not to proceed with the designation of a Special Rate
Period, thereby resulting in a Standard Rate Period.
2.6 Notice of Auction Results. On each Auction Date for any series of
TAPS, the Auction Agent shall notify Broker-Dealers of the results of the
Auction held on such date by telephone as set forth in paragraph (a) of the
Settlement Procedures.
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2.7 Broker-Dealers.
(a) Not later than 12:00 Noon on each Auction Date for any series of
TAPS, the Fund shall pay to the Auction Agent an amount in cash equal to
the aggregate fees payable to the Broker-Dealers for such series pursuant
to Section 2.6 of the Broker-Dealer Agreement for such series. The Auction
Agent shall apply such moneys as set forth in Section 2.6 of each such
Broker-Dealer Agreement.
(b) The Fund shall obtain the consent of the Auction Agent
prior to selecting any Person to act as a Broker-Dealer, which consent
shall not be unreasonably withheld.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement as
set forth therein if so directed by the Fund.
(d) Subject to the Auction Agent's having consented to the selection
of the relevant Broker- Dealer pursuant to Section 2.8(b) hereof, the
Auction Agent shall from time to time enter into such Broker- Dealer
Agreements with one or more Broker-Dealers as the Fund shall request, and
shall enter into such schedules to any such Broker-Dealer Agreements as
the Fund shall request, which schedules, among other things, shall set
forth the series of TAPS to which such Broker-Dealer Agreement relates.
2.8 Ownership of TAPS. The Fund shall notify the Auction Agent if the Fund
or any affiliate of the Fund acquires any shares of TAPS of any series. Neither
the Fund nor any affiliate of the Fund shall submit any Order in any Auction for
TAPS, except as set forth in the next sentence. Any Broker-Dealer that is an
affiliate of the Fund may submit Orders in Auctions, but only if such Orders are
not for its own account. For purposes of this Section 2.7, a Broker-Dealer shall
not be deemed to be an affiliate of the Fund solely because one or more of the
directors or executive officers of such Broker-Dealer or of any Person
controlled by, in control of or under common control with such Broker- Dealer is
also a Director of the Fund. The Auction Agent shall have no duty or liability
with respect to enforcement of this Section 2.8.
2.9 Access to and Maintenance of Auction Records. The Auction Agent shall,
upon the receipt of prior written notice from the Fund, afford to the Fund
access at reasonable times during normal business hours to all books, records,
documents and other information concerning the conduct and results of Auctions.
The Auction Agent shall maintain records relating to an Auction for a period of
six years after such Auction and such records shall, in reasonable detail,
accurately and fairly reflect the actions taken by the Auction Agent hereunder.
2.10 Dividend and Redemption Price Deposit. The Fund shall pay to the
Auction Agent, not later than 12:00 noon, New York City time, (A) on the
Business Day next preceding any Dividend Payment Date for any series of TAPS, in
funds available on such Dividend Payment Date in The City of New York, New York,
the full amount of any dividends to be paid on such Dividend Payment Date on any
share of such series, and (B) on the Business Day next preceding any redemption
date for any series of TAPS in funds available on such redemption date for such
series in The City of New York, New York, the Redemption Price to be paid on
such redemption date for the shares of any such series after notice of
redemption is given as set forth in the Statement.
3. The Auction Agent as Dividend and Redemption Price Disbursing Agent.
The Auction Agent, as dividend and redemption price disbursing agent,
shall pay to the Holders of shares of TAPS of any series (i) on each Dividend
Payment Date for such series, dividends on the shares of TAPS of such series,
(ii) an any date fixed for redemption of shares of TAPS of any series, the
Redemption Price of any shares of such series called for redemption and (iii)
any late charge related to any payment of dividends or Redemption Price, in each
case after receipt of the necessary funds from the Fund with which to pay such
dividends, Redemption Price or late charge. The amount of dividends for any
Dividend Period for any series of TAPS to be paid by the Auction Agent to the
Holders of such shares of such series will be determined by the Fund as set
forth in Section 2 of Part I of the Statement with respect to such series. The
Redemption Price of any shares to be paid by the Auction Agent to the Holders
will be determined by the Fund as set forth in Section 3 of Part I of the
Statement with respect to such series. The Fund shall notify the Auction Agent
in writing of a decision to redeem shares of any series of TAPS as provided in
paragraph (b)
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of Section 3 of Part V of the Statement. Such notice by the Fund to the Auction
Agent shall contain the information required by paragraph (b) of Section 3 of
Part I of the Statement to be stated in the notice of redemption required to be
mailed by the Auction Agent to such Holders.
4. The Auction Agent as Transfer Agent and Registrar.
4.1 Issue of Share Certificates. Upon the Date of Original Issue of each
series or TAPS, one certificate representing all of the shares of each series
issued on such date shall be issued by the Fund and, at the request of the Fund,
registered in the name of Cede & Co. and countersigned by the Auction Agent.
4.2 Registration of Transfer of Shares. Shares of each series of TAPS
shall be registered solely in the name of the Securities Depository or its
nominee.
4.3 Removal of Legend on Restricted Shares. All requests for removal of
legends on shares of any series of TAPS indicating restrictions on transfer
shall be accompanied by an opinion of counsel stating that such legends may be
removed and such shares freely transferred, such opinion to be delivered under
cover of a letter from a Fund Officer authorizing the Auction Agent to remove
the legend on the basis of said opinion.
4.4 Lost Share Certificates. The Auction Agent shall issue and register
replacement certificates for certificates represented to have been lost, stolen
or destroyed upon the fulfillment of such requirements as shall be deemed
appropriate by the Fund and the Auction Agent, subject at all times to
provisions of law, the By-Laws of the Fund governing such matters and
resolutions adopted by the Fund with respect to lost securities. The Auction
Agent may issue new certificates in exchange for and upon the cancellation of
mutilated certificates. Any request by the Fund to the Auction Agent to issue a
replacement or new certificate pursuant to this Section 4.4 shall be deemed to
be a representation and warranty by the Fund to the Auction Agent that such
issuance will comply with such provisions of law and the By-Laws and resolutions
of the Fund.
4.5 Disposition of Canceled Certificates; Record Retention. The Auction
Agent shall retain all share certificates which have been cancelled in transfer
or exchange and all accompanying documentation in accordance with applicable
rules and regulations of the Securities and Exchange Commission for two calendar
years. Upon the expiration of this two-year period, the Auction Agent shall
deliver to the Fund the cancelled certificates and accompanying documentation.
The Fund also shall undertake to furnish to the Securities and Exchange
Commission and to the Board of Governors of the Federal Reserve System, upon
demand, at either the principal office or at any regional office, complete,
correct and current hard copies of any and all such records. Thereafter such
records shall not be destroyed by the Fund without the concurrence of the
Auction Agent.
4.6 Share Transfer Books. For so long as the Auction Agent is acting as
the transfer agent for any series of TAPS pursuant to this Agreement, it shall
maintain a share transfer book containing a list of the Holders of the shares of
each series of TAPS, the number of shares of each series held by such Holders
and the address of each Holder. The Auction Agent shall record in such share
transfer books any change of address of a Holder upon notice by such Holder. In
case of any request or demand for the inspection of the share transfer books of
the Fund or any other books in the possession of the Auction Agent, the Auction
Agent will notify the Fund and secure instructions as to permitting or refusing
such inspection. The Auction Agent reserves the right, however, to exhibit the
share transfer books or other books to any Person in case it is advised by its
counsel that its failure to do so would be unlawful.
4.7 Return of Funds. Any funds deposited with the Auction Agent hereunder
by the Fund for any reason, including but not limited to redemption of shares of
TAPS of any series, that remain unpaid after 90 days shall be repaid to the Fund
upon the written request of the Fund, together with interest, if any, earned
thereon.
5. Representations and Warranties of the Fund.
The Fund represents and warrants to the Auction Agent that:
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(a) the Fund is a duly organized and existing business trust in good
standing under the laws of the State of Massachusetts and has full corporate
power or all requisite power to execute and deliver the Agreement and to
authorize, create and issue the shares of TAPS of each series and the shares of
TAPS of each series when issued, will be duly authorized, validly issued, fully
paid and nonassessable;
(b) the Agreement has been duly and validly authorized, executed and
delivered by the Fund and constitutes the legal, valid and binding obligation of
the Fund;
(c) the form of the certificate evidencing the shares of TAPS of each
series complies or will comply with all applicable laws of the State of
Massachusetts;
(d) when issued, the shares of TAPS of each series will have been duly
registered under the Securities Act of 1933, as amended, and no further action
by or before any governmental body or authority of the United States or of any
state thereof is required in connection with the execution and delivery of the
Agreement or will have been required in connection with the issuance of the
shares of TAPS of each series; and
(e) the execution and delivery of the Agreement and the issuance and
delivery of the shares of TAPS of each series do not and will not conflict with,
violate or result in a breach of, the terms, conditions or provisions of, or
constitute a default under, the Declaration of Trust (as amended by one or more
Statements) or the By-Laws of the Fund, any law or regulation, any order or
decree of any court or public authority having jurisdiction, or any mortgage,
indenture, contract, agreement or undertaking to which the Fund is a party or by
which it is bound the effect of which conflict, violation, default or breach
would be material to the Fund or the Fund and its subsidiaries taken as a whole.
6. The Auction Agent.
6.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the Fund
hereunder and owes no fiduciary duties to any other Person by reason of
this Agreement.
(b) The Auction Agent undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement and the
Broker-Dealer Agreements, 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 or for any error of judgment made by it in the performance of its
duties under this Agreement except that the Auction Agent shall be liable
for any error of judgment made in good faith if the Auction Agent shall
have been negligent in ascertaining the pertinent facts.
(d) Any funds deposited with the Auction Agent hereunder by the Fund
for any reason, including the payment of dividends or the redemption of
shares of TAPS of any series, that remain with the Auction Agent after 90
days shall be repaid to the Fund as provided in Section 4.7 hereof.
6.2 Rights of the Auction Agent.
(a) The Auction Agent may rely and shall be protected in acting or
refraining from acting upon any communication authorized hereby and upon
any written instruction, notice, request, direction, consent, report,
certificate, share certificate or other instrument, paper or document
believed by it to be genuine. The Auction Agent shall not be liable for
acting upon any telephone communication authorized hereby which the
Auction Agent believes in good faith to have been given by the Fund or by
any Broker-Dealer. The Auction Agent may record telephone communications
with the Fund or with any Broker-Dealer.
8
12
(b) The Auction Agent may consult with counsel reasonably
acceptable to the Fund 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 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 and shall
not be responsible for any misconduct on the part of any agent or attorney
appointed by it with due care hereunder except as set forth above in
Section 6.1(c).
6.3 Auction Agent's Disclaimer. The Auction Agent makes no
representation as to the validity or adequacy of this Agreement (except as to
the Auction Agent's duties hereunder and that the Auction Agent hereby
represents that this Agreement has been duly authorized, executed and delivered
by the Auction Agent and constitutes a legal and binding obligation of the
Auction Agent).
6.4 Compensation, Expenses and Indemnification.
(a) The Fund shall pay the Auction Agent from time to time
reasonable compensation for all services rendered by it under this
Agreement and the Broker-Dealer Agreement in such amounts as may be agreed
to by the Fund and the Auction Agent from time to time.
(b) The Fund shall reimburse the Auction Agent upon its request for
all reasonable out-of-pocket expenses, disbursements and advances incurred
or made by the Auction Agent in accordance with any provision of this
Agreement and the Broker-Dealer Agreements (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any expense or disbursement attributable to its
negligence or bad faith.
(c) The Fund shall indemnify the Auction Agent for and hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
its agency under this Agreement and the Broker-Dealer Agreements,
including the costs and expenses of defending itself against any claim or
liability in connection with its exercise or performance of its duties
hereunder and thereunder for which indemnification is provided by this
subsection.
7. Miscellaneous.
7.1 Term of Agreement.
(a) The term of this Agreement is unlimited unless it shall be
terminated as provided in this Section 7.1. The Fund may terminate this
Agreement any time by so notifying the Auction Agent, provided that the
Fund has entered into an agreement in substantially the form of this
Agreement with a successor auction agent. The Auction Agent may terminate
this Agreement upon written notice to the Fund, such termination to be
effective on the earlier of (i) the date specified in such notice which
shall not be earlier than 45 days after the giving of such notice or (ii)
the date on which a successor Auction Agent is appointed by the Fund
pursuant to an agreement containing substantially the same terms and
conditions as this Agreement.
(b) Except as otherwise provided in this paragraph (b), the
respective rights and duties of the Fund and the Auction Agent under this
Agreement shall cease upon termination of this Agreement. The Fund's
obligations under Section 6.4 hereof and its representations and
warranties contained in Section 5 hereof and the Auction Agent's
obligations and liabilities under Sections 2.9 and 4.5 hereof shall
survive the termination hereof. Upon termination of this Agreement, the
Auction Agent shall, at the Fund's request, promptly deliver to the Fund
copies of all books and records maintained by it in connection with its
duties hereunder.
9
13
7.2 Communications. Except for (a) communications authorized to be by
telephone pursuant to this Agreement or the Auction Procedures and (b)
communications in connection with Auctions (other than those expressly required
to be in writing) and unless otherwise specified by the terms of this Agreement
all notices, requests and other communications to any party hereunder shall be
in writing (including telecopy or similar writing) given to such person at its
address or telecopy number set forth below:
(AA)
If to the Fund, addressed: Nuveen Senior Income Fund
-------------------------
-------------------------
Attention:
--------------
Telephone No.:
----------
Telecopier No.:
---------
With a copy sent to:
-------------------------
-------------------------
-------------------------
Telephone No.:
-----------
Telecopier No.:
----------
If to the Auction Agent, addressed: Bankers Trust Company
[Address]
Attention:
---------------
Telecopier No.:
Telephone No.:
(AA)
or to such other address as the party to whom the communication is addressed
shall have previously communicated to the other party. Communications shall be
given on behalf of the Fund by a Fund Officer and on behalf of the Auction Agent
by an Authorized Officer. Communications shall be effective when received at the
proper address.
7.3 Entire Agreement. This Agreement contains the entire agreement among
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. This Agreement supersedes all prior
agreements between the parties relating to the subject matter of this Agreement.
7.4 Benefits. Nothing herein, express or implied, shall give to any Person,
other than the Fund, the Auction Agent and their respective successors and
assigns, any benefit of any legal or equitable right, remedy or claim hereunder.
7.5 Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled 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 hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such rights or remedies with respect to any
subsequent breach.
10
14
7.6 Successors and Assigns. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by, the respective successors of each of the
Fund and the Auction Agent.
7.7 Severability. If any clause, provision or section hereof shall be ruled
invalid or unenforceable by any court of competent jurisdiction, the invalidity
or unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
7.8 Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
7.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
7.10 Declaration of Trust. The Fund's Declaration is on file with the
Secretary of State of the Commonwealth of Massachusetts. This Agreement has been
executed on behalf of the Fund by the Vice President and Treasurer of the Fund
acting in such capacity and not individually, and the obligations of the Fund
set forth in this Agreement are not binding upon any of the Fund's trustees,
officers or shareholders individually, but are binding only upon the assets and
property of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Auction Agent
Agreement to be duly executed and delivered by their proper authorized officers
as of the date first above written.
NUVEEN SENIOR INCOME FUND
By:
--------------------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By:
--------------------------------------------
Name:
Title:
11
15
EXHIBIT A
BROKER-DEALER AGREEMENT
A-1
16
EXHIBIT B
SETTLEMENT PROCEDURES
B-1
17
EXHIBIT C
FORM OF STATEMENT
C-1
18
EXHIBIT D
NUVEEN SENIOR INCOME FUND
NOTICE OF AUCTION DATE FOR
TAXABLE AUCTIONED PREFERRED SHARES ("TAPS")
NOTICE IS HEREBY GIVEN that the Auction Date of the next Auction for the TAPS
Series TH of NUVEEN SENIOR INCOME FUND (the "Fund") is scheduled to be
and the next Dividend Payment Date for the Fund's TAPS Series TH
will be .
D-1
19
EXHIBIT E
NUVEEN SENIOR INCOME FUND
NOTICE OF PROPOSED DESIGNATION OF
SPECIAL RATE PERIOD FOR
TAXABLE AUCTIONED PREFERRED SHARES
NOTICE IS HEREBY GIVEN that NUVEEN SENIOR INCOME FUND (the "Fund") proposes to
exercise its option to designate the Dividend Period of its Series TH Taxable
Auctioned Preferred Shares ("TAPS") commencing [the first day of the proposed
Special Rate Period] and ending [the last day of the proposed Special Rate
Period] as a Special Rate Period.
By 9:00 A.M., New York City time, on the Business Day next preceding the first
day of such proposed Special Rate Period, the Fund will notify the Auction Agent
for the TAPS of either (a) its determination to exercise such option,
designating the length of such Special Rate Period and the terms of the Specific
Redemption Provisions, if any, or (b) its determination not to exercise such
option.
NUVEEN SENIOR INCOME FUND
Dated:
--------------------------
E-1
20
EXHIBIT F
NUVEEN SENIOR INCOME FUND
NOTICE OF DESIGNATION OF SPECIAL RATE PERIOD OF
TAXABLE AUCTIONED PREFERRED SHARES
NOTICE IS HEREBY GIVEN that NUVEEN SENIOR INCOME FUND (the "Fund") has
determined to designate the Dividend Period of its Series TH Taxable Auctioned
Preferred Shares ("TAPS") commencing on [the first day of the Special Rate
Period] and ending on (the last day of the Special Rate Period] as a Special
Rate Period.
The Special Rate Period will be [days] year(s]].
The Auction Date for the Special Rate Period is (the Business Day next preceding
the first day of such Special Rate Period].
The scheduled Dividend Payment Dates for such series of TAPS during such Special
Rate Period will be .
[Specific Redemption Provisions, if applicable.]
[The Special Rate Period shall not commence if on such Auction Date Sufficient
Clearing Bids shall not exist.]
NUVEEN SENIOR INCOME FUND
Dated:
----------------------
F-1
21
EXHIBIT G
NUVEEN SENIOR INCOME FUND
NOTICE OF DETERMINATION NOT TO DESIGNATE
SPECIAL RATE PERIOD OF
TAXABLE AUCTIONED PREFERRED SHARES
NOTICE IS HEREBY GIVEN that NUVEEN SENIOR INCOME FUND (the "Fund") has
determined not to exercise its option to designate a Special Rate Period of its
Series TH Taxable Auctioned Preferred Shares. Accordingly, the next succeeding
Dividend Period of such series will be a Standard Rate Period.
NUVEEN SENIOR INCOME FUND
Dated:
--------------------
G-1
