EXHIBIT k.5
CALAMOS BROKER-DEALER AGREEMENT
BASIC TERMS FOR ACTING AS A BROKER-DEALER
RELATING TO
PREFERRED SHARES
July 31, 2003
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........................................................................................7
2.5 Designation of Special Rate Period.............................................................7
2.6 Service Charge to be Paid to BD................................................................8
2.7 Settlement.....................................................................................8
3. The Auction Agent......................................................................................10
3.1 Duties and Responsibilities...................................................................10
3.2 Rights of the Auction Agent...................................................................10
3.3 Auction Agent's Disclaimer....................................................................11
4. Miscellaneous..........................................................................................11
4.1 Termination...................................................................................11
4.2 Force Majeure.................................................................................11
4.3 Participant in Securities Depository..........................................................11
4.4 Payment of Dividends in Same-Day Funds........................................................11
4.5 Communications................................................................................12
4.6 Entire Agreement..............................................................................12
4.7 Benefits......................................................................................12
4.8 Amendment; Waiver.............................................................................12
4.9 Successors and Assigns........................................................................13
4.10 Severability..................................................................................13
4.11 Execution in Counterparts.....................................................................13
4.12 Governing Law.................................................................................13
EXHIBITS
EXHIBIT A - Settlement Procedures
EXHIBIT B - Calamos Preferred Shares, Series___ Order Form
EXHIBIT C - Calamos Preferred Shares, Series___ Transfer Form
EXHIBIT X - Xxxxxxx Preferred Shares, Series___ Notice of a Failure to Deliver
EXHIBIT E - Form of Acceptance Letter
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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 Preferred Shares ("Preferred Shares") 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 Preferred Shares, 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 Preferred Shares 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
Preferred Shares of such Fund.
The Auction Procedures of each Fund will require the participation of
one or more Broker-Dealers for each series of Preferred Shares of such Fund. BD
will act as a Broker-Dealer for each series of Preferred Shares 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 Preferred Shares 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
Preferred Shares 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 Preferred Shares 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 Preferred Shares 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 Preferred Shares, who may be interested in
acquiring shares of Preferred Shares (or, in the case
of an Existing Holder, additional shares of Preferred
Shares).
(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 Preferred Shares 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 Preferred
Shares.
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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 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 Preferred Shares 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
Preferred Shares. 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 Preferred Shares, the Auction Agent shall
advise the Broker-Dealers for such series by
telephone of the 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.
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(b) In the event that any Auction Date for any series of
Preferred Shares 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 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 Preferred Shares of
such change in the Auction Date.
(c) For purposes of maintaining its list of Existing
Holders, the Auction Agent for any series of
Preferred Shares 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 Preferred Shares such Broker-Dealer believes are
owned by such Person. BD shall comply with any such
request relating to a series of Preferred Shares 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. In the event the Auction Agent is required to
disclose information in accordance with the foregoing
sentence, it shall provide written notice of such
requirement to the Broker-Dealer as promptly as
practicable.
(d) In the event the Auction Agent is required to
disclose information in accordance with the foregoing
sentence, it shall provide written notice of such
requirement to the Broker-Dealer as promptly as
possible.
(e) BD agrees to maintain a list of customers relating to
a series of Preferred Shares 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.
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(f) The Auction Agent's registry of Existing Holders of
shares of a series of Preferred Shares 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
Preferred Shares and 9:30 A.M. on the Auction Date
for such Auction to ascertain the number of shares of
such series in respect of which the Auction Agent has
determined BD to be an Existing Holder. If BD
believes it is the Existing Holder of fewer shares of
such series than specified by the Auction Agent in
response to BD's inquiry, BD may so inform the
Auction Agent of that belief. BD shall not, in its
capacity as Existing Holder of shares of such series,
submit Orders in such Auction in respect of shares of
such series covering in the aggregate more than the
number of shares of such series specified by the
Auction Agent in response to BD's inquiry.
2.3 Auction Schedule; Method of Submission of Order.
(a) The Auction Agent shall conduct Auctions for
Preferred Shares in accordance with the schedule set
forth below. Such schedule with respect to any series
of Preferred Shares 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 Preferred Shares allocated as provided in
Section 4 of the Auction Procedures.
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Time Event
----------------------------- -------------------------------------------------
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 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
Preferred Shares 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 Preferred Shares
to be transferred to or by any Person that purchased
or sold shares of Preferred Shares 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 Preferred Shares
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 Preferred Shares to be
purchased or sold on such Auction Date by any
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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 Preferred
Shares.
2.4 Notices.
(a) On each Auction Date for any series of Preferred
Shares, 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 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 Preferred Shares
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 Preferred
Shares 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
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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 Preferred Shares of any Fund specified in the Request Letter of any
Fund, the Auction Agent for such series shall 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 Preferred Shares 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
Preferred Shares 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 Preferred Shares of any series that was
accepted in whole or in part fails to instruct its
Agent Member to deliver the shares of Preferred
Shares 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
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Preferred Shares of such series that was accepted in
whole or in part a number of shares of Preferred
Shares of such series that is less than the number of
shares of Preferred Shares 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
Preferred Shares of any series or to pay for shares
of Preferred Shares 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 Preferred Shares 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 Preferred
Shares 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 Preferred Shares 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 Preferred
Shares 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.
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(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.
(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 hereby 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;
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earthquakes; fires, floods; wars; civil or military
disturbances; sabotage; acts of terrorism; 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 (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
Preferred Shares 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 Preferred Shares of the Fund after such termination. Each
Agreement shall automatically terminate with respect to any
series of Preferred Shares with respect to which the Auction
Agency Agreement has terminated.
4.2 Force Majeure. Neither party to this Agreement shall be
responsible or liable for any failure or delay in the
performance of its obligations under this Agreement arising
out of or caused, directly or indirectly, by circumstances
beyond its reasonable control, including, without limitation,
acts of God; earthquakes; fires; floods; wars; civil or
military disturbances; sabotage; epidemics; riots;
interruptions, loss or malfunctions or utilities; computer
(hardware or software) or communications services; accidents;
labor disputes; acts of civil or military authority or
governmental actions; it being understood that the parties
shall use reasonable efforts which are consistent with
accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
4.3 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).
4.4 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
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on the Preferred Shares available in same-day funds on each
Dividend Payment Date to customers that use BD or affiliate as
Agent Member.
4.5 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:
Calamos Strategic Total Return Fund
0000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Xx.
Telephone No.: (000) 000-0000
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.
4.6 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.
4.7 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.
4.8 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.
12
(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.
4.9 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.
4.10 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.
4.11 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.
4.12 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.
13
EXHIBIT A
SETTLEMENT PROCEDURES
A-1
EXHIBIT B
[Name of Fund]
$_____ ______ PREFERRED SHARES
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 ORDERS BY NUMBER OF SHARES
PREFERRED SHARES POTENTIAL HOLDERS- OF PREFERRED SHARES
------------------------------------------------------------------------------------------------------------------------------------
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 of
outstanding shares of 15. /
------ ------- ------------------
Preferred Shares 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 Preferred Shares not greater than the
number of shares of Preferred Shares 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]
PREFERRED SHARES,
SERIES -- ("______")
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 Preferred Shares 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 PREFERRED SHARES
sold pursuant to an Auction)
[NAME OF FUND]
PREFERRED SHARES, SERIES____ ("_____")
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 Preferred Shares 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 Preferred Shares 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
Preferred Shares to the Purchaser
[ ] the Purchaser failed to make payment to the Seller
upon delivery of such shares of Preferred Shares
Name:
---------------------------------
(Name of Broker-Dealer)
By:
---------------------------------
Printed Name:
Title:
D-1
EXHIBIT E
[Form of Broker-Dealer Acceptance Letter]
Calamos Asset Management, Inc.
________________, 2004
[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 Preferred Shares ("Preferred Shares")
dated , 2004, 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 Preferred
Shares 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 Preferred Shares 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 Preferred Shares 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 Preferred Shares 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 Preferred Shares.
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:
---------------------------- Title:
Name:
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 Preferred Shares 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 Preferred Shares ("Preferred
Shares") dated ____________ __, 2004, 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 Preferred
Shares dated ____________ __, 2004, 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 Preferred Shares 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 Preferred Shares 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 Preferred Shares 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: By:
---------------------------- ----------------------------------------
Name: Name:
Title: 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 Preferred
Shares 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 Preferred Shares ("Preferred
Shares") dated ____________ __, 2004, 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 ____________ __,
2003, 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 Preferred Shares 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 Preferred Shares 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
