EXHIBIT k.5
XXXXXXXX-XXXXXXXXX CONVERTIBLE & INCOME FUND II
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
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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 II
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[BROKER-DEALER]
BROKER-DEALER AGREEMENT
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 II (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 ___________________________(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 Third Amended and Restated Bylaws (as defined below).
As provided in and subject to the Fund's Third 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 Third Amended and Restated Bylaws.
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Capitalized terms used herein but not defined herein shall have the
respective meanings specified in the Third 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 Third 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) "Settlement Procedures" shall mean the Settlement Procedures
attached hereto as Exhibit A.
(g) "Third Amended and Restated Bylaws" shall mean the Third 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.
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 Third Amended and Restated Bylaws and in the
event of any conflict with Section 11.10 of Article 11 of the Third Amended and
Restated Bylaws, then Section 11.10 of Article 11 of the Third Amended and
Restated Bylaws shall take precedence.
II. NOTIFICATION OF DIVIDEND.
The provisions contained in Section 11.2(c)(iii) of the Third 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
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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 Third 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, but shall not be
required to, 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,
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employees, agents or 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.
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(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
Third 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
Third 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 Third
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 Third 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 Third 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 (1) the
Business Day preceding the Auction Date (in connection with notice delivered
pursuant to clause (i) of the foregoing sentence) or (2) the Business preceding
the next Auction Date following the failure of Preferred Shares to be
transferred (in connection with notice delivered pursuant to clause (ii) of the
foregoing sentence).
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 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 were (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
and (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 Third 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 Third 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 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 such Dividend Period.
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. The Auction Agent may record telephone communications with the
Fund or with BD or with both.
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(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 UBS Securities LLC, neither UBS Securities LLC 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
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Same-Day Funds.
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(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.
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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 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:
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If to the Auction Agent,
addressed to:
Deutsche Bank Trust Company Americas
Corporate Trust & Agency Services
00 Xxxx Xxxxxx -- 27th Floor
Mail Stop NYC60-2715
Xxx Xxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (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.
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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 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.
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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 Third 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 & Income
Corporate Trust and Agency Group Fund II
00 Xxxx Xxxxxx, 00xx Xxxxx Auction Preferred Shares, Series
Xxx Xxxx, XX 00000 A, B, C, D and E ("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 II
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 ____________________________________________.
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(Name of Existing Holder)
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(Name of Broker-Dealer)
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(Name of Agent Member)
By:
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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 II 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:
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(Name of Broker-Dealer)
By:
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Printed Name:
Title:
