EXHIBIT (k)(4)
CALAMOS BROKER-DEALER AGREEMENT
BASIC TERMS FOR ACTING AS A BROKER-DEALER
Relating to
AUCTION MARKET PREFERRED SHARES ("AMPS")
September 16, 2002
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.............................................................................................3
2.1 Purposes; Incorporation by Reference of Auction Procedures and Settlement Procedures...........3
2.2 Preparation of Each Auction....................................................................3
2.3 Auction Schedule; Method of Submission of Order................................................5
2.4 Notices........................................................................................6
2.5 Designation of Special Rate Period.............................................................7
2.6 Service Charge to be Paid to BD................................................................7
2.7 Settlement.....................................................................................8
3. The Auction Agent.......................................................................................9
3.1 Duties and Responsibilities....................................................................9
3.2 Rights of the Auction Agent...................................................................10
3.3 Auction Agent's Disclaimer....................................................................11
4. Miscellaneous..........................................................................................11
4.1 Termination...................................................................................11
4.2 Participant in Securities Depository..........................................................11
4.3 Payment of Dividends in Same-Day Funds........................................................11
4.4 Communications................................................................................11
4.5 Entire Agreement..............................................................................12
4.6 Benefits......................................................................................12
4.7 Amendment; Waiver.............................................................................12
4.8 Successors and Assigns........................................................................12
4.9 Severability..................................................................................12
4.10 Execution in Counterparts.....................................................................12
4.11 Governing Law.................................................................................12
EXHIBITS
EXHIBIT A - Settlement Procedures
EXHIBIT B - Calamos AMPS, Series ____ Order Form
EXHIBIT C - Calamos AMPS, Series ____ Transfer Form
EXHIBIT X - Xxxxxxx AMPS, Series ____ Notice of a Failure to Deliver
EXHIBIT E - Form of Acceptance Letter
i
These basic terms ("Basic Terms") set forth the general terms and
conditions pursuant to which a broker-dealer identified in a Acceptance Letter
(together with its successors and assigns, a "BD") will act as a Broker-Dealer
for Auction Market Preferred Shares ("AMPS") issued by investment companies, now
or hereafter organized, registered under the Investment Company Act of 1940, as
amended (the "Funds"), for which Calamos Asset Management, Inc. (the "Adviser")
is the investment adviser.
Each Fund has issued or may issue shares of AMPS, pursuant to its
Agreement and Declaration of Trust, as amended or supplemented by the Statement
of such Fund. A bank or trust company specified in the Request and Acceptance
Letter will act as the auction agent (the "Auction Agent") of such Fund pursuant
to authority granted it in the Auction Agency Agreement.
The Statement of each Fund will provide that, for each Rate Period of
any series of AMPS of such Fund then outstanding, the Applicable Rate for such
series for such Rate Period shall, except under certain conditions, be the rate
per annum that the Auction Agent of such Fund advises results from
implementation of the Auction Procedures for such series. The Board of Trustees
of each Fund will adopt a resolution appointing the Auction Agent as auction
agent for purposes of the Auction Procedures for each series of AMPS of such
Fund.
The Auction Procedures of each Fund will require the participation of
one or more Broker-Dealers for each series of AMPS of such Fund. BD will act as
a Broker-Dealer for each series of AMPS of each Fund.
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 of the relevant Fund.
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) "Acceptance Letter" shall mean the letter from the
Fund, Adviser and Auction Agent to BD pursuant to
which the BD is appointed as a Broker-Dealer for each
series of AMPS issued by any Fund that has executed a
Request Letter.
(b) "Agreement", with respect to any Fund, shall mean the
Basic Terms, together with the Acceptance Letter and
Request Letter relating to one or more series of AMPS
of such Fund.
(c) "Auction" shall have the meaning specified in Section
2.1 hereof.
(d) "Auction Agency Agreement" shall mean the Auction
Agent Agreement between a Fund and the Auction Agent
relating to one or more series of AMPS of such Fund.
(e) "Auction Procedures" shall mean the auction
procedures constituting Part II of the Statement.
(f) "Authorized Officer" shall mean each Vice President,
Assistant Vice President and Assistant Treasurer of
the Auction Agent assigned to the Dealing and Trading
Group of its Corporate Trust Division and every other
officer or employee of the Auction Agent designated
as an "Authorized Officer" for purposes of this
Agreement in a communication to the BD.
(g) "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.
(h) "Broker-Dealer Agreement" shall mean this Agreement
and any substantially similar agreement between the
Auction Agent and a Broker-Dealer.
(i) "Existing Holder" shall have the meaning set forth in
the Statement, and for purposes of this Broker-Dealer
Agreement and with respect to the Auction Procedures
as referred to in this Agreement, shall also include,
as the circumstances may require, a Person who is
listed as the beneficial owner of AMPS in the records
of a Broker-Dealer.
(j) "Potential Holder" shall have the meaning set forth
in the Statement, and for purposes of this
Broker-Dealer Agreement and with respect to the
Auction Procedures as referred to in this Agreement,
shall also include, as the circumstances may require,
any other Person, including any Existing Holder of
shares of AMPS, who may be interested in acquiring
shares of AMPS (or, in the case of an Existing
Holder, additional shares of AMPS).
(k) "Request Letter" with respect to any Fund, shall mean
the letter from such Fund to the Adviser and the
Auction Agent for such Fund pursuant to which such
Fund appoints BD as a Broker-Dealer for each series
of AMPS of such Fund.
(l) "Settlement Procedures" shall mean the Settlement
Procedures attached hereto as Exhibit A.
(m) "Statement" shall mean the Statement of Preferences
of Auction Market Preferred Shares and authorizing
the issuance of, one or more series of AMPS.
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:
2
(a) Words importing the singular number shall include the
plural number and vice versa.
(b) The captions and headings herein are solely for the
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 Purposes; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) The provisions of the Auction Procedures will be
followed by the Auction Agent for the purpose of
determining the Applicable Rate for any Dividend
Period of any series of AMPS for which the Applicable
Rate is to be determined by an Auction. 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 hereof to the same
extent as if such provisions were fully set forth
herein.
(c) The BD agrees to act as, and assumes the obligations
of, and limitations and restrictions placed upon, a
Broker-Dealer under this Agreement for each series of
AMPS. The BD understands that other Persons meeting
the requirements specified in the definition of
"Broker-Dealer" contained in the Auction Procedures
may execute Broker-Dealer Agreements and participate
as Broker-Dealers in Auctions.
2.2 Preparation of Each Auction.
(a) Not later than 9:30 A.M. on each Auction Date for any
series of AMPS, the Auction Agent shall advise the
Broker-Dealers for such series by telephone of the
Minimum Rate and Maximum Rate therefor and the AA
Composite Commercial Paper Rate(s) and the Treasury
Index Rate(s), as the case may be, used in
determining the Maximum Rate.
(b) In the event that any Auction Date for any series of
AMPS shall be changed after the Auction Agent has
given the notice referred to in clause (vi) 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
3
such means as the Auction Agent deems practicable
shall give notice of such change to the BD, if it is
a Broker-Dealer 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 original Auction Date. Thereafter, the BD
shall notify customers of the BD who the BD believes
are Existing Holders of shares of AMPS of such change
in the Auction Date.
(c) For purposes of maintaining its list of Existing
Holders, the Auction Agent for any series of AMPS
from time to time may but shall have no obligation to
request any Broker-Dealer to provide such 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 of AMPS
such Broker-Dealer believes are owned by such Person.
BD shall comply with any such request relating to a
series of AMPS in respect of which BD was named a
Broker-Dealer, and the Auction Agent shall keep
confidential any such information so provided by BD
and shall not disclose any information so provided by
BD to any Person other than the Fund and BD;
provided, however, that the Auction Agent reserves
the right and is authorized to disclose any such
information if (a) it is ordered to do so by a court
of competent jurisdiction or a regulatory body,
judicial or quasi-judicial agency or authority having
the authority to compel such disclosure, (b) it is
advised by its counsel that its failure to do so
would be unlawful or (c) failure to do so would
expose the Auction Agent to loss, liability, claim,
damage or expense for which it has not received
indemnity or security satisfactory to it.
(d) BD agrees to maintain a list of customers relating to
a series of AMPS and to use its best efforts, subject
to existing laws and regulations, to contact the
customers on such list whom BD believes may be
interested in participating in the Auction on each
Auction Date, as a Potential Holder or a Potential
Beneficial Owner, for the purposes set forth in the
Auction Procedures. Nothing herein shall require BD
to submit an Order for any customer in any Auction.
(e) The Auction Agent's registry of Existing Holders of
shares of a series of AMPS shall be conclusive and
binding on BD. BD may inquire of the Auction Agent
between 3:00 P.M. on the Business Day preceding an
Auction for shares of a series of AMPS and 9:30 A.M.
on the Auction Date for such Auction to ascertain the
number of shares of such series in respect of which
the Auction Agent has determined BD to be an Existing
Holder. If BD believes it is the Existing Holder of
fewer shares of such series than specified by the
Auction Agent in response to BD's inquiry, BD may so
inform the Auction Agent of that belief. BD shall
not, in its capacity as Existing Holder of shares of
such series, submit Orders in such Auction in respect
of shares of such series covering in the aggregate
more
4
than the number of shares of such series specified by
the Auction Agent in response to BD's inquiry.
2.3 Auction Schedule; Method of Submission of Order.
(a) The Auction Agent shall conduct Auctions for AMPS in
accordance with the schedule set forth below. Such
schedule with respect to any series of AMPS of the
Fund may be changed by the Auction Agent for such
series with the consent of the Fund, which consent
shall not be unreasonably withheld. The Auction Agent
shall give written notice of any such change to each
Broker-Dealer of such series. Such notice shall be
given prior to the close of business on the Business
Day next preceding the first Auction Date on which
such change shall be effective.
Time Event
By 9:30 A.M. Auction Agent for such series advises the Fund and the
Broker-Dealers for such series of the applicable Maximum
Rate and the Reference Rate(s) used in determining such
Maximum Rate as set forth in Section 2.2(a) hereof.
9:30 A.M. - 1:00 P.M. Auction Agent assembles information communicated to it
by Broker-Dealers as provided in Section 2(a) of the
Auction Procedures of the Fund. Submission Deadline
is 1:00 P.M.
Not earlier than 1:00 P.M. Auction Agent makes determinations pursuant to Section
3(a) of the Auction Procedures.
By approximately 3:00 P.M. Auction Agent advises the Fund of results of Auction as
provided in Section 3(b) of the Auction Procedures.
Submitted Bids and Submitted Sell Orders are accepted and
rejected and shares of such series of AMPS allocated as
provided in Section 4 of the Auction Procedures.
Auction Agent gives notice of Auction results as set forth
in Section 2.4(a) hereof.
(b) BD shall submit Orders to the appropriate Auction
Agent in writing substantially in the form attached
hereto as Exhibit B. BD shall submit a
5
separate Order to such Auction Agent for each
Potential Holder or Existing Holder with respect to
whom BD is submitting an Order and shall not
otherwise net or aggregate such Orders prior to their
submission to such Auction Agent.
(c) BD shall deliver to the appropriate Auction Agent (i)
a written notice in substantially the form attached
hereto as Exhibit C of transfers of shares of AMPS to
BD from 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 any shares of AMPS to be transferred to or by any
Person that purchased or sold shares of AMPS through
BD pursuant to an Auction. Such Auction Agent is not
required to accept any such notice described in
clause (i) for an Auction unless it is received by
the Auction Agent by 3:00 P.M. on the Business Day
preceding such Auction.
(d) BD and other Broker-Dealers may submit Orders in
Auctions for their own accounts (including Orders for
their own accounts where the Order is placed
beneficially for a customer) unless the relevant Fund
shall have notified BD and all other Broker-Dealers
that they may no longer do so, in which case
Broker-Dealers may continue to submit Hold Orders and
Sell Orders for their own accounts.
(e) BD agrees to handle its customers' orders in
accordance with its duties under applicable
securities laws and rules.
(f) To the extent that pursuant to Section 4 of the
Auction Procedures of any Fund, BD continues to hold,
sells, or purchases a number of shares that is fewer
than the number of shares in an Order submitted by BD
to the Auction Agent in which BD designated itself as
an Existing Holder or Potential Holder in respect of
customer Orders, BD shall make appropriate pro rata
allocations among its customers for which it
submitted Orders of similar tenor. If as a result of
such allocations, any Beneficial Owner would be
entitled or required to sell, or any Potential
Beneficial Owner would be entitled or required to
purchase, a fraction of a share of AMPS on any
Auction Date, BD shall, in such manner as it shall
determine in its sole discretion, round up or down
the number of shares of AMPS to be purchased or sold
on such Auction Date by any Beneficial Owner or
Potential Beneficial Owner on whose behalf BD
submitted an Order so that the number of shares so
purchased or sold by each such Beneficial Owner or
Potential Beneficial Owner on such Auction Date shall
be whole shares of AMPS.
2.4 Notices.
(a) On each Auction Date for any series of AMPS, the
Auction Agent shall notify BD, if BD is a
Broker-Dealer of such series, by telephone or other
electronic means acceptable to the parties of the
results of the Auction as
6
set forth in paragraph (a) of the Settlement
Procedures. By approximately 11:30 a.m., on the
Business Day next succeeding such Auction Date, the
Auction Agent shall confirm to BD in writing the
disposition of all Orders submitted by BD in such
Auction.
(b) BD shall notify each Existing Holder, Potential
Holder, Beneficial Owner or Potential Beneficial
Owner on whose behalf BD has submitted an Order as
set forth in paragraph (a) of the Settlement
Procedures and take such other action as is required
of BD pursuant to the Settlement Procedures.
2.5 Designation of Special Rate Period.
(a) If any Fund delivers to the Auction Agent a notice of
the Auction Date for any series of AMPS for a
Dividend Period thereof that next succeeds a Dividend
Period that is not a Standard Rate Period in the form
of Exhibit C to the Auction Agency Agreement, the
Auction Agent shall deliver such notice to BD as
promptly as practicable after its receipt of such
notice from such Fund.
(b) If the Board of Trustees proposes to designate any
succeeding Dividend Period of any series of AMPS as a
Special Rate Period and such Fund delivers to the
Auction Agent a notice of such proposed Special Rate
Period in the form of Exhibit D to the Auction Agency
Agreement, the Auction Agent shall deliver such
notice to BD as promptly as practicable after its
receipt of such notice from the Fund.
(c) If the Board of Trustees determines to designate such
succeeding Dividend Period as a Special Rate Period
and such Fund delivers to the Auction Agent a notice
of such Dividend Period in the form of Exhibit E to
the Auction Agency Agreement not later than 3:00 p.m.
on the second Business Day next preceding the first
day of such proposed Special Rate Period, the Auction
Agent shall deliver such notice to BD not later than
3:00 p.m. on the next succeeding Business Day.
(d) If the Fund shall deliver to the Auction Agent a
notice not later than 3:00 p.m. on the second
Business Day next preceding the first day of any
Dividend Period stating that the Fund has determined
not to exercise its option to designate such
succeeding Dividend Period as a Special Rate Period,
in the form of Exhibit F to the Auction Agent
Agreement, or shall fail to timely deliver either
such notice or a notice in the form of Exhibit E to
the Auction Agency Agreement, the Auction Agent shall
deliver a notice in the form of Exhibit F to the
Auction Agency Agreement to BD not later than 3:00
p.m. on such Business Day.
2.6 Service Charge to be Paid to BD.
On the Business Day next succeeding each Auction Date for any
series of AMPS of any Fund specified in the Request Letter of any Fund, the
Auction Agent for such series shall
7
pay to BD from moneys received from such Fund an amount equal to the product of
(a) (i) in the case of any Auction Date immediately preceding a Rate Period of
such series consisting of 364 Rate Period Days or fewer, 1/4 of 1%, or (ii) in
the case of any Auction Date immediately preceding a Rate Period of such series
consisting of more than 364 Rate Period Days, such percentage as may be agreed
upon by such Fund and BD with respect to such Rate Period, times (b) a fraction,
the numerator of which is the number of Rate Period Days in the Rate Period
therefor beginning on such Business Day and the denominator of which is 365 if
such Rate Period consists of 7 Rate Period Days and 360 for all other Rate
Periods, times (c) $25,000 times (d) the sum of (i) the aggregate number of
shares of such series placed by BD in such Auction that were (A) the subject of
Submitted Bids of Existing Holders submitted by BD and continued to be held as a
result of such submission and (B) the subject of Submitted Bids of Potential
Holders submitted by BD and purchased as a result of such submission plus (ii)
the aggregate number of shares of such series subject to valid Hold Orders
(determined in accordance with paragraph (d) of Section 2 of the Auction
Procedures) submitted to the Auction Agent by BD plus (iii) the number of shares
of AMPS deemed to be subject to Hold Orders of Existing Holders pursuant to
paragraph (c) of Section 2 of the Auction Procedures of such Fund that were
acquired by BD for its own account or were acquired by BD for its customers who
are Beneficial Owners.
For purposes of subclause (d)(iii) of the foregoing paragraph,
if any Existing Holder or Beneficial Owner who acquired shares of any series of
AMPS through BD transfers those shares to another Person other than pursuant to
an Auction, then the Broker-Dealer for the shares so transferred shall continue
to be BD; provided, however, that if the transfer was effected by, or if the
transferee is, a Broker-Dealer other than BD, then such Broker-Dealer shall be
the Broker-Dealer for such shares.
2.7 Settlement.
(a) If any Existing Holder or Beneficial Owner with
respect to whom BD has submitted a Bid or Sell Order
for shares of AMPS of any series that was accepted in
whole or in part fails to instruct its Agent Member
to deliver the shares of AMPS subject to such Bid or
Sell Order against payment therefor, BD, if it knows
the identity of such Agent Member, shall instruct
such Agent Member to deliver such shares against
payment therefor and, if such Agent Member fails to
comply with such instructions, BD may deliver to the
Potential Holder or Potential Beneficial Owner with
respect to whom BD submitted a Bid for shares of AMPS
of such series that was accepted in whole or in part
a number of shares of AMPS of such series that is
less than the number of shares of AMPS of such series
specified in such Bid to be purchased by such
Potential Holder or Potential Beneficial Owner.
(b) Neither the Auction Agent nor the Fund shall have any
responsibility or liability with respect to the
failure of an Existing Holder, Beneficial Owner,
Potential Holder or Potential Beneficial Owner or its
respective Agent Member to deliver shares of AMPS of
any series or to pay for
8
shares of AMPS of any series sold or purchased
pursuant to the Auction Procedures or otherwise.
(c) Notwithstanding any provision of the Auction
Procedures or the Settlement Procedures to the
contrary, in the event BD is an Existing Holder with
respect to shares of a series of AMPS and the Auction
Procedures provide that BD shall be deemed to have
submitted a Sell Order in an Auction with respect to
such shares if BD fails to submit an Order in that
Auction with respect to such shares, BD shall have no
liability to any Person for failing to sell such
shares pursuant to such a deemed Sell Order if (i)
such shares were transferred by the beneficial owner
thereof without notification of such transfer in
compliance with the Auction Procedures or (ii) BD has
indicated to the Auction Agent pursuant to Section
2.2(e) of this Agreement that, according BD's
records, BD is not the Existing Holder of such
shares.
(d) Notwithstanding any provision of the Auction
Procedures or the Settlement Procedures to the
contrary, in the event an Existing Holder or
Beneficial Owner of shares of a series of AMPS with
respect to whom a Broker-Dealer submitted a Bid to
the Auction Agent for such shares that was accepted
in whole or in part, or submitted or is deemed to
have submitted a Sell Order for such shares that was
accepted in whole or in part, fails to instruct its
Agent Member to deliver such shares against payment
therefor, partial deliveries of shares of AMPS that
have been made in respect of Potential Holders, or
Potential Beneficial Owners' Submitted Bids for
shares of such series that have been accepted in
whole or in part shall constitute good delivery to
such Potential Holders and Potential Beneficial
Owners.
(e) Notwithstanding the foregoing terms of this Section,
any delivery or non-delivery of shares of AMPS of any
series which represents any departure from the
results of an Auction for shares of such series, as
determined by the Auction Agent, shall be of no
effect for purposes of the registry of Existing
Holders maintained by the Auction Agent pursuant to
the Auction Agency Agreement unless and until the
Auction Agent shall have been notified of such
delivery or non-delivery.
(f) The Auction Agent shall have no duty or liability
with respect to enforcement of this Section 2.7.
3. The Auction Agent
3.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the
Funds with whom such Auction Agent has entered into
Request Letters hereunder and owes no duties,
fiduciary or otherwise, to any other Person.
9
(b) The Auction Agent undertakes to perform such duties
and only such duties as are specifically set forth in
such agreements to which it is a party, and no
implied covenants or obligations shall be read into
the agreements against the Auction Agent.
(c) In the absence of willful misconduct or gross
negligence on its part, the Auction Agent shall not
be liable for any action taken, suffered, or omitted
or for any error of judgment made by it in the
performance of its duties under this agreements. The
Auction Agent shall not be liable for any error of
judgment made in good faith unless the Auction Agent
shall have been grossly negligent in ascertaining the
pertinent facts.
3.2 Rights of the Auction Agent.
(a) The Auction Agent may conclusively 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 in good
faith 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 believes in good faith to have been
given by the Fund or by a Broker-Dealer. The Auction
Agent may record telephone communications with the
Broker-Dealers.
(b) The Auction Agent may consult with counsel of its
choice and the advice of such counsel shall be full
and complete authorization and protection in respect
of any action taken, suffered or omitted by 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 shall not be responsible or liable
for any failure or delay in the performance of its
obligations under this agreement arising out of or
caused, directly or indirectly, by circumstances
beyond its reasonable control, including, without
limitation, acts of God; earthquakes; fires, floods;
wars; civil or military disturbances; sabotage;
epidemics; riots; interruptions, loss or malfunctions
of utilities; computer (hardware or software) or
communications services; accidents; labor disputes;
acts of civil or military authority or governmental
actions; it being understood that the Auction Agent
shall use reasonable efforts which are consistent
with accepted practices in the banking industry to
resume performance as soon as practicable under the
circumstances.
(e) In no event shall the Auction Agent be responsible or
liable for special, indirect or consequential loss or
damage of any kind whatsoever
10
(including, but not limited to, loss of profit), even
if the Auction Agent has been advised of the
likelihood of such loss or damage and regardless of
the form of action.
3.3 Auction Agent's Disclaimer. The Auction Agent makes no
representation as to the validity or adequacy of this
Agreement, the Auction Agency Agreement or the shares of AMPS
of any series.
4. Miscellaneous
4.1 Termination. Any party to this Agreement may terminate the
Agreement at any time on five days' notice to the other
parties to such Agreement, provided that the Fund party to the
Agreement shall not terminate the Agreement unless at least
one Broker-Dealer Agreement would be in effect for each series
of AMPS of the Fund after such termination. Each Agreement
shall automatically terminate with respect to any series of
AMPS with respect to which the Auction Agency Agreement has
terminated.
4.2 Participant in Securities Depository. BD is, and shall remain
for the term of this Agreement, a member of, or participant
in, the Securities Depository (or an affiliate of such a
member participant).
4.3 Payment of Dividends in Same-Day Funds. BD represents that it
(or if BD does not act as Agent Member, one of its affiliates)
shall make all dividend payments on the AMPS available in
same-day funds on each Dividend Payment Date to customers that
use BD or affiliate as Agent Member.
4.4 Communications. Except (i) communications authorized to be by
telephone by this Agreement or the Auction Procedures and (ii)
communications in connection with 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, addressed to it, at its addressed or
telecopy number set forth below:
If to BD, to the address or telecopy number as set forth in the
Acceptance Letter.
If to the Auction Agent, to the address or telecopy number as set forth
in the Request Letter.
If to the Fund, addressed:
[Name of Fund]
0000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Xx.
Telephone No.: (630) 245-_____
11
or such other address or telecopy number as such party may hereafter specify for
such purpose by notice to the other parties. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of BD by a BD Officer and on behalf of
the Auction Agent by an Authorized Officer. BD may record telephone
communications with the Auction Agent.
4.5 Entire Agreement. This Agreement contains the entire agreement
among the parties hereto relating to the subject matter
hereof, and there are no other representations, endorsements,
promises, agreements or understandings, oral, written or
implied, among the parties hereto relating to the subject
matter hereof. This Agreement supersedes and terminates all
prior Broker-Dealer Agreements between the parties.
4.6 Benefits. Nothing in this Agreement, express or implied, shall
give to any person, other than the Fund, the Auction Agent, BD
and their respective successors and assigns, any benefit of
any legal or equitable right, remedy or claim hereunder.
4.7 Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in
whole or in part, except by a written instrument
signed by a duly authorized representative of the
party to be charged.
(b) Failure of any party hereto to exercise any right or
remedy hereunder in the event of a breach hereof by
any other party shall not constitute a waiver of any
such right or remedy with respect to any subsequent
breach.
4.8 Successors and Assigns. This Agreement shall be binding upon,
inure to the benefit of, and be enforceable by, the respective
successors and assigns of each of the Auction Agent and BD.
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.
4.9 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 thereof.
4.10 Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be an original and
all of which shall constitute but one and the same instrument.
4.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said
State.
12
EXHIBIT A
SETTLEMENT PROCEDURES
A-1
EXHIBIT B
[Name of Fund]
$_____ AMPS
Series ____
AUCTION DATE: _____________
ISSUE: ___________________ SERIES: _________
THE UNDERSIGNED Broker-Dealer SUBMITS THE FOLLOWING ORDERS ON BEHALF OF THE
BIDDER(S) LISTED BELOW:
ORDERS BY EXISTING HOLDERS- NUMBER OF SHARES OF AMPS ORDERS BY POTENTIAL HOLDERS- NUMBER OF SHARES OF AMPS
POTENTIAL HOLDER BID/RATE
EXISTING HOLDER HOLD BID/RATE SELL 1.__________ ________/________
1._____________ _______ ________/________ ________ 2.__________ ________/________
2._____________ _______ ________/________ ________ 3.__________ ________/________
3._____________ _______ ________/________ ________ 4.__________ ________/________
4._____________ _______ ________/________ ________ 5.__________ ________/________
5._____________ _______ ________/________ ________ 6.__________ ________/________
6._____________ _______ ________/________ ________ 7.__________ ________/________
7._____________ _______ ________/________ ________ 8.__________ ________/________
8._____________ _______ ________/________ ________ 9.__________ ________/________
9._____________ _______ ________/________ ________ 10._________ ________/________
10.____________ _______ ________/________ ________ 11._________ ________/________
12._________ ________/________
NOTES: 13._________ ________/________
14._________ ________/________
1. If one or more Orders covering in the aggregate more than the number 15._________ ________/________
of outstanding shares of AMPS held by any Existing holder are
submitted, such Orders shall be considered valid in the order of
priority set forth in the Auction Procedures.
2. A Hold Order or Sell Order may be placed only by an Existing Holder
covering a number of shares of AMPS not greater than the number of
shares of AMPS currently held by such Existing Holder.
3. Potential Holders may make Bids only, each of which must specify a
rate. If more than one Bid is submitted on behalf of any Potential
Holder, each Bid submitted shall be a separate Bid with the rate
specified.
4. Bids may contain no more than three figures to the right of the
decimal point (.001 of 1%).
B-1
[AUCTION AGENT] AUCTION BID FORM NAME OF Broker-Dealer:
AUTHORIZED
Submit to: SIGNATURE:
TOTAL NUMBER OF ORDERS ON THIS BID FORM: _____________
B-2
EXHIBIT C
(To be used only for transfers made
other than pursuant to in Auction)
[NAME OF FUND]
AUCTION MARKET PREFERRED SHARES,
SERIES ___ -- ("AMPS")
TRANSFER FORM
We are (check one):
_________ The Existing Holder named below;
_________ The Broker-Dealer for such Existing Holding; or
_________ The Agent Member for such Existing Holder.
We hereby notify you that such Existing Holder has transferred _____ shares of
the above series of AMPS to ____________________.
________________________________________
(Name of Existing Holder)
________________________________________
(Name of Broker-Dealer)
________________________________________
(Name of Agent Member)
By:
_____________________________________
Printed Name:
C-1
EXHIBIT D
(To be used only for failures to
deliver shares of AMPS
sold pursuant to an Auction)
[NAME OF FUND]
AUCTION MARKET PREFERRED SHARES, SERIES ___ ("AMPS")
NOTICE OF A FAILURE TO DELIVER
Complete either I or II
I. We are a Broker-Dealer for _______________ (the "Purchaser"), which
purchased ____ shares of the above series of AMPS in the Auction held
on _______________ from the seller of such shares.
II. We are a Broker-Dealer for ________________ (the "Seller"), which sold
_____ shares of the above series of AMPS in the Auction held on
_______________ to the purchaser of such shares.
We hereby notify you that (check one) --
/ / the Seller failed to deliver such shares of AMPS
to the Purchaser
/ / the Purchaser failed to make payment to the Seller
upon delivery of such shares of AMPS
Name: __________________________
(Name of Broker-Dealer)
By: ____________________________
Printed Name:
Title:
D-1
EXHIBIT E
[Form of Broker-Dealer Acceptance Letter]
Calamos Asset Management, Inc.
, 20___
[Broker-Dealer]
[Address]
Ladies and Gentlemen:
Reference is made to the Calamos Broker-Dealer Agreement-Basic Terms
for Acting as a Broker-Dealer Relating to Auction Market Preferred Shares
("AMPS") dated ________, 2002, receipt of which is hereby acknowledged by you
(the "Basic Terms"). For purposes of this letter ("Acceptance Letter") (a)
"Fund" shall mean any closed-end investment company registered under the
Investment Company Act of 1940, as amended, for which Calamos Asset Management,
Inc. acts as investment adviser; (b) except as otherwise provided below, the
Basic Terms are incorporated herein by reference, you shall be considered BD for
all purposes thereof, The Bank of New York shall be considered the Auction Agent
for all purposes thereof, and each Fund shall be considered a Fund for all
purposes thereof.
We hereby request that you act as a Broker-Dealer for the AMPS of each
series, of each Fund that executes a letter, substantially in the form attached
hereto as Exhibit A or Exhibit B, as appropriate, appointing you as a
Broker-Dealer ("Request Letter"). You hereby (a) accept such appointment as a
Broker-Dealer for each series of AMPS of each Fund identified in a Request
Letter and (b) agree to act as BD in accordance with the Basic Terms; provided,
however, that:
(1) for purposes of the Basic Terms, and notwithstanding any
provision to the contrary, your address, telecopy number and telephone number
for communications pursuant to the Basic Terms shall be as follows:
and the address, telecopy number and telephone number of the Auction Agent for
communications pursuant to the Basic Terms shall be as follows:
E-1
(2) notwithstanding any provisions of the Basic Terms to the
contrary, except as otherwise set forth herein, your appointment as
Broker-Dealer extends to each series of AMPS issued by a Fund.
You hereby acknowledge that, notwithstanding any provision of the Basic
Terms to the contrary, the Fund may (a) upon five business days' notice to the
Auction Agent and you, amend, alter or repeal any of the provisions contained in
the Basic Terms, it being understood and agreed that you shall be deemed to have
accepted any such amendment, alteration or repeal if, after the expiration of
such five business day period, you submit an Order to the Auction Agent in
respect of the shares of AMPS of a Fund or Funds to which such amendment,
alteration or repeal relates, and (b) upon two business days' notice to the
Auction Agent and you, exclude you from participating as a Broker-Dealer in any
particular Auction for any particular series of AMPS.
This Acceptance Letter shall be deemed to form part of the Basic Terms.
Capitalized Terms not defined in this Acceptance Letter shall have the
meanings ascribed to them in the Basic Terms.
[Signature Page Follows]
E-2
If the foregoing terms are acceptable to you, please so indicate in the
space provided below. This Acceptance Letter may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
CALAMOS ASSET MANAGEMENT, INC.
By: __________________________
Name:
Title:
Accepted by and Agreed to as of
the date first written above:
______________________________________ THE BANK OF NEW YORK
[Broker-Dealer]
By: __________________________
By: __________________________________ Name:
Name: Title:
Title:
E-3
EXHIBIT A TO ACCEPTANCE LETTER
[Form of Request Letter]
________________, _____
FROM: All investment companies registered under the Investment
Company Act of 1940, as amended, for which Calamos Asset
Management, Inc. acts as investment adviser and whose
registration statements relating to shares of AMPS have been
declared effective by the Securities and Exchange Commission
on or prior to the date hereof.
TO: Calamos Asset Management, Inc.
The Bank of New York
Ladies and Gentlemen:
Reference is made to (a) the Calamos Broker-Dealer Agreement -- Basic
Terms for Acting as a Broker-Dealer relating to Auction Market Preferred Shares
("AMPS") dated ____________ __, 2002, receipt of which is hereby acknowledged by
you (the "Broker-Dealer Basic Terms"); and (b) the Calamos Auction Agency
Agreement -- Basic Terms for Acting as Auction Agent relating to AMPS dated
____________ __, 2002, receipt of which is hereby acknowledged by you (the
"Auction Agency Basic Terms"). For purposes of this letter ("Request Letter"),
(a) "Fund" shall mean any closed-end investment company registered under the
Investment Company Act of 1940, as amended, for which Calamos Asset Management,
Inc. acts as investment adviser; (b) the Broker-Dealer Basic Terms are
incorporated herein by reference, each Broker-Dealer listed on Exhibit A hereto
shall be considered BD for all purposes thereof, The Bank of New York shall be
considered the Auction Agent for all purposes thereof, and each Fund referred to
on Exhibit B hereto shall be considered a Fund for all purposes thereof; (c) the
Auction Agency Basic Terms are incorporated herein by reference, The Bank of New
York shall be considered the Auction Agent for all purposes thereof, and each
Fund referred to on Exhibit B hereto shall be considered a Fund for all purposes
thereof.
We hereby appoint the Broker-Dealers listed on Exhibit A hereto as
Broker-Dealers for the AMPS of each series of each Fund referred to on Exhibit B
hereto. Each such Broker-Dealer will act as BD in respect of such series in
accordance with the Broker-Dealer Basic Terms; provided, however, that for
purposes of any such Broker-Dealer Agreement or the Broker-Dealer Basic Terms,
and notwithstanding any provision of any Broker-Dealer Agreement to the
contrary, The Bank of New York's address, telecopy number and telephone number
for communications pursuant to such Broker-Dealer Agreement or the Broker-Dealer
Basic Terms shall be as follows:
A-1
___________________________________
___________________________________
___________________________________
___________________________________
The Bank of New York agrees to act as Auction Agent with respect to
shares of each series of AMPS of each Fund referred to on Exhibit B hereto in
accordance with the Auction Agency Basic Terms.
This Request Letter shall be deemed to form part of the Auction Agency
Basic Terms.
Capitalized terms not defined in this Request Letter shall have the
meanings ascribed to them in the relevant Broker-Dealer Basic Terms or Auction
Agency Basic Terms, as the case may be.
[Signature Page Follows]
A-2
If the foregoing terms are acceptable to you, please so indicate in the
space provided below. This Request Letter may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
All investment companies registered
under the Investment Company Act of
1940, as amended, for which Calamos
Asset Management, Inc. acts as
investment adviser and whose
registration statements relating to
shares of AMPS have been declared
effective by the Securities and
Exchange Commission on or prior to
the date hereof.
By: ________________________________
Name:
Title:
Accepted and Agreed to as of the date
first written above:
CALAMOS ASSET MANAGEMENT, INC.
THE BANK OF NEW YORK
By: ___________________________
Name: By: ________________________________
Title: Name:
Title:
cc: [Broker-Dealers]
A-3
EXHIBIT A TO REQUEST LETTER
[LIST OF BROKER-DEALERS]
A-1
EXHIBIT B TO REQUEST LETTER
Each Fund whose registration statement relating to shares of AMPS has
been declared effective by the Securities and Exchange Commission on or prior to
the date of the Request Letter to which this Exhibit B is attached.
B-1
EXHIBIT B TO ACCEPTANCE LETTER
[Form of Request Letter]
[Name(s) of Fund(s)]
______________, _____
Ladies and Gentlemen:
Reference is made to (a) the Calamos Broker-Dealer Agreement -- Basic
Terms for Acting as a Broker-Dealer relating to Auction Market Preferred Shares
("AMPS") dated ____________ __, 2002, receipt of which is hereby acknowledged by
you (the "Broker-Dealer Basic Terms") and (b) the Calamos Auction Agency
Agreement -- Basic Terms for Acting as Auction Agent dated ____________ __,
2002, receipt of which is hereby acknowledged by you (the "Auction Agency Basic
Terms"). For purposes of this letter ("Request Letter"), (a) "Fund" shall mean
each undersigned closed-end investment company registered under the Investment
Company Act of 1940, as amended, for which Calamos Asset Management, Inc. acts
as investment adviser; (b) the Broker-Dealer Basic Terms are incorporated herein
by reference, each Broker-Dealer listed on Exhibit A hereto shall be considered
Broker-Dealer for all purposes thereof, The Bank of New York shall be considered
the Auction Agent for all purposes thereof, and each Fund shall be considered a
Fund for all purposes thereof; and (c) the Auction Agency Basic Terms are
incorporated herein by reference, The Bank of New York shall be considered the
Auction Agent for all purposes thereof, and each Fund shall be considered a Fund
for all purposes thereof.
Each Fund hereby appoints the Broker-Dealers listed on Exhibit A hereto
as Broker-Dealers for each series of AMPS of such Fund. Each such Broker-Dealer
will act as Broker-Dealer in respect of each such series in accordance with the
Broker-Dealer Basic Terms; provided, however, that for purposes of the
Broker-Dealer Basic Terms, The Bank of New York's address, telecopy number and
telephone number for communications pursuant to the Broker-Dealer Basic Terms
shall be as follows:
___________________________________
___________________________________
___________________________________
___________________________________
The Bank of New York agrees to act as Auction Agent with respect to
shares of each series of AMPS of each Fund in accordance with the Auction Agency
Basic Terms.
This Request Letter shall be deemed to form part of the Auction Agency
Basic Terms.
B-1
Capitalized terms not defined in this Request Letter shall have the
meanings ascribed to them in the Broker-Dealer Basic Terms or Auction Agency
Basic Terms, as the case may be.
If the foregoing terms are acceptable to you, please so indicate in the
space provided below. This Request Letter may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
[NAME(S) OF FUND(S)]
By: ______________________________
Name:
Title:
Accepted and Agreed to as of the date
first written above:
CALAMOS ASSET MANAGEMENT, INC. THE BANK OF NEW YORK
By: __________________________ By: ______________________________
Name: Name:
Title: Title:
cc: [Broker-Dealers listed on Exhibit A]
B-2
EXHIBIT A TO REQUEST LETTER
[LIST OF BROKER-DEALERS]
A-1
