Exhibit 99.(k)(ii)
BROKER-DEALER AGREEMENT
AMONG
DEUTSCHE BANK TRUST COMPANY AMERICAS
AS AUCTION AGENT
[[INSERT BROKER-DEALER NAME]]
AS BROKER-DEALER
DATED AS OF [___________, 2003]
RELATING TO
AUCTION PREFERRED SHARES
SERIES __ AND SERIES _
OF
[INSERT FUND NAME]
BROKER-DEALER AGREEMENT dated as of [_________ __, 2003] (this
"Agreement"), among (i) Deutsche Bank Trust Company Americas, a New York banking
corporation, as auction agent (the "Auction Agent") (not in its individual
capacity but solely as agent of [insert Fund name], a Maryland corporation (the
"Corporation")) pursuant to authority granted to it in the Auction Agency
Agreement and (ii) [[insert Broker-Dealer name]], as broker-dealer (together
with its successors and assigns as such hereinafter referred to as "BD").
The Corporation intends to issue [two] series of Auction Preferred Shares,
no par value per share, liquidation preference $50,000 per share, designated
Series __ and Series __, collectively, the "APS"). The shares of each series of
APS shall be issued in book-entry form through the facilities of the Securities
Depository. References to "Shares of APS" or "APS" in this Agreement shall refer
only to the beneficial interests in the APS unless the context otherwise
requires.
The Auction Procedures require the participation of a Broker-Dealer.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Auction Agent, the Corporation
and BD agree as follows:
1. DEFINITIONS AND RULES OF CONSTRUCTION
1.1 TERMS DEFINED BY ARTICLES SUPPLEMENTARY. Capitalized terms not defined
herein shall have the respective meanings specified in the Articles
Supplementary.
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) "Agent Member" of any Person shall mean the member of, or
participant in, the Securities Depositary that will act on behalf of a Bidder.
(b) "Agreement" with respect to the Corporation shall mean this
Agreement as may be amended in writing with written consent of the Corporation.
(c) "APS" shall mean the preferred shares, $0.001 par value per share,
of the Corporation designated as its "Auction Preferred Shares" and bearing such
further designation as to series as the Board of Directors, as the case may be,
of the Corporation or any committee thereof shall specify.
(d) "Articles Supplementary" shall mean the Articles Supplementary of
the Fund in effect at the time the Registration Statement relating to the APS is
declared effective by the Securities and Exchange Commission, specifying the
powers, preferences and rights of the APS.
(e) "Auction" shall have the meaning specified in Section 2.1 hereof.
(f) "Auction Procedures" shall mean the auction procedures
constituting Part II of the form of Articles Supplementary.
(g) "Authorized Officer" shall mean each Managing Director, Vice
President, Assistant Vice President and Associate of the Auction Agent and every
other officer or employee of the Auction Agent designated as an "Authorized
Officer" for purposes hereof in a written communication from the Auction Agent
to the Corporation.
(h) "Settlement Procedures" shall mean the Settlement Procedures
attached to the Auction Agency Agreement as Exhibit B.
(i) "Corporate Officer" shall mean the Chairman, the President, each
Vice President (whether or not designated by a number or word or words added
before or after the title "Vice President"), the Secretary, the Treasurer, each
Assistant Vice President, each Assistant Secretary and each Assistant Treasurer
of the Corporation and every other officer or employee of the Corporation
designated as a "Corporate Officer" for purposes hereof in a notice to the
Auction Agent.
1.3 RULES OF CONSTRUCTION. Unless the context or use indicates another or
different meaning or intent, the following rules shall apply to the construction
of this Agreement:
(a) Words importing the singular number shall include the plural
number and vice versa.
(b) The captions and headings herein are solely for convenience of
reference and shall not constitute a part of this Agreement nor shall they
affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto," and other words of similar
import refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to New
York City time.
(e) This Agreement shall apply separately but equally to all series of
APS that may be issued. Section 1 and 2 hereof shall be read in conjunction with
Part II of the Articles Supplementary and in the event of any conflict with Part
II of the Articles Supplementary, Part II of the Articles Supplementary shall
take precedence.
1.4 WARRANTIES OF BD. BD hereby represents and warrants that this
Broker-Dealer Agreement has been duly authorized, executed and delivered by BD
and that, assuming the due authorization, execution and delivery hereof by the
Auction Agent, this Broker-Dealer Agreement constitutes a valid and binding
agreement of BD, enforceable against it in accordance with its terms. BD's
representations and warranties in this Section 1.4 shall survive the termination
of this Agreement.
2. THE AUCTIONS.
2.1 PURPOSE; INCORPORATION BY REFERENCE OF AUCTION PROCEDURES AND
SETTLEMENT PROCEDURES.
(a) On each Auction Date, the provisions of the Auction Procedures
will be followed by the Auction Agent for the purpose of determining the
Applicable Rate for the APS for the next Dividend Period. Each periodic
implementation of such procedures is hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures and the
Settlement Procedures are incorporated herein by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions were fully set forth herein.
(c) BD agrees to act as, and assumes the obligations of and
limitations and restrictions placed upon, a Broker-Dealer under this Agreement.
(d) BD may participate in Auctions for its own account.
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2.2 PREPARATION FOR EACH AUCTION.
(a) Not later than 9:30 a.m. on each Auction Date, the Auction Agent
shall advise BD by telephone or other electronic means of the Maximum Rate,
Reference Rate(s) and Treasury Index Rate(s).
(b) BD shall cause the Maximum Rate to be communicated as promptly as
practicable to its customers who hold or may be interested in acquiring APS.
(c) If required by applicable law, or requested by the Auction Agent,
BD shall provide a list of Existing Holders based upon inquiries of those
Persons such Broker-Dealer believes are Beneficial Owners as a result of the
most recent Auction to the Auction Agent promptly after any date so requested by
the Auction Agent. The Auction Agent shall keep confidential any such
information, including information received as to the identity of Bidders in any
Auction, and shall not disclose any such information so provided to any Person
other than the other parties hereto, PROVIDED that the Auction Agent reserves
the right to disclose any such information if (a) it is ordered to do so by a
court of competent jurisdiction or a regulatory, judicial or quasi-judicial
agency, (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
satisfactory to it. In the event that the Auction Agent is required to disclose
information in accordance with the foregoing sentence, it shall provide written
notice of such requirement to BD as promptly as practicable. The Auction Agent
shall, subject to the terms of the Auction Agency Agreement, transmit any list
of customers BD believes are Beneficial Owners of APS and information related
thereto only to its officers, employees, agents or representatives who need to
know such information for the purposes of acting in accordance with this
Agreement, and the Auction Agent shall prevent the transmission of such
information to others and shall cause its officers, employees, agents and
representatives to abide by the foregoing confidentiality restrictions;
PROVIDED, HOWEVER, that the Auction Agent shall have no responsibility or
liability for the actions of any of its officers, employees, agents or
representatives after they have left the employ of the Auction Agent.
(d) BD agrees to maintain a list of customers relating to a series of
APS 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 APS 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 APS 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 ORDERS.
(a) The Auction Agent shall conduct Auctions in accordance with the
schedule set forth below. Such schedule may be changed at any time by the
Auction Agent with the consent of the Corporation, which consent shall not be
unreasonably withheld. The Auction Agent shall give written notice of any such
change to BD which shall have the right to review such change. Such notice shall
be received one Business Day prior to the first Auction Date on which any such
change shall be effective.
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TIME EVENT
---- -----
By 9:30 a.m. Auction Agent advises the Corporation
and the Broker-Dealer of the applicable
Maximum Rate and the Reference Rate(s)
and Treasury Index Rate(s) as set forth
in Section 2.2(a) hereof.
9:30 a.m. - 1:30 p.m. Auction Agent assembles information
communicated to it by Broker-Dealer as
provided in Section 1(a) of the Auction
Procedures. Submission Deadline is 1:30
p.m.
Not earlier than Auction Agent makes determinations
1:30 p.m. pursuant to Section 4(a) of the Auction
Procedures.
By approximately Auction Agent advises the Corporation of
3:00 p.m. results of Auction as provided in
Section 4(b) of the Auction Procedures.
Submitted Bids and Submitted Sell Orders
are accepted and rejected in whole or in
part and APS are 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 may designate one or more individuals in its organization who
will coordinate its procedures in connection with Auctions and purchases and
sales of shares of any series of APS.
(c) BD agrees to handle its customers' order in accordance with its
duties under applicable securities laws and rules.
(d) To the extent that pursuant to Section 4 of the Auction Procedures
of the Corporation, 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 Beneficial Owner would be entitled or required to
purchase, a fraction of a Share of APS on any Auction Date, BD shall, in such
manner as it shall determine in its sole discretion, round up or down the number
of APS 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.
(e) BD shall submit Orders to the Auction Agent in writing in
substantially the form attached hereto as Exhibit A. BD shall submit separate
Orders to the Auction Agent for each Potential Holder or Existing Holder on
whose behalf BD is submitting an Order and shall not net or aggregate the Orders
of Potential Holders or Existing Holders on whose behalf BD is submitting
Orders.
(f) BD shall deliver to the Auction Agent (i) a written notice,
substantially in the form attached hereto as Exhibit B, of transfers of APS made
through BD by an Existing Holder to another Person other than pursuant to an
Auction and (ii) a written notice, substantially in the form attached
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hereto as Exhibit C, of the failure of any APS to be transferred to or by any
Person that purchased or sold APS through BD pursuant to an Auction. The Auction
Agent is not required to accept any notice delivered pursuant to the terms of
the foregoing sentence with respect to an Auction unless the Auction Agent
receives it by 3:30 p.m. on the Business Day preceding such Auction.
2.4 NOTICES.
(a) On each Auction Date, the Auction Agent shall notify BD by
telephone or facsimile (or other electronic means acceptable to both 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 notify BD in writing of the disposition of
all Orders submitted by BD in the Auction held on such Auction Date.
(b) BD shall notify each Existing Holder or Potential Holder on whose
behalf BD has submitted an Order as set forth in paragraph (b) of the Settlement
Procedures and take such other action as is required of BD pursuant to the
Settlement Procedures.
2.5 NOTIFICATION OF DIVIDEND.
The provisions contained in Section 4 of Part I of the Articles
Supplementary concerning the notification of a Special Dividend Period will be
followed by the Fund, and, to the extent necessary, the Auction Agent and BD,
and the provisions contained therein are incorporated herein by reference in
their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions were set forth fully herein.
2.6 SERVICE CHARGE TO BE PAID TO BD.
(a) No later than 12:00 noon on each Dividend Payment Date, the
Auction Agent after each Auction will pay a service charge from funds provided
by the Corporation to each Broker-Dealer on the basis of the purchase price of
APS placed by such Broker-Dealer at such Auction. The service charge shall be
(i) in the case of any Auction Date immediately preceding a Dividend Period
other than a Special Dividend Period, the product of (A) a fraction the
numerator of which is the number of days in such Dividend Period (calculated by
counting the date of original issue of such shares to but excluding the next
succeeding dividend payment date of such shares) and the denominator of which is
360, times (B) 1/4 of 1%, times (C) $50,000 times (D) the sum of the aggregate
number of shares of outstanding APS for which the Auction is conducted and (ii)
in the case of any Special Dividend Period the amount determined by mutual
consent of the Corporation and any such Broker-Dealers and shall be based upon a
selling concession that would be applicable to an underwriting of fixed or
variable rate APS with a similar final maturity or variable rate dividend
period, respectively, at the commencement of the Dividend Period with respect to
such Auction.
(b) If the Corporation determines to change the rate at which the
Broker-Dealer Fee accrues, the Corporation shall mail to the Auction Agent a
notice thereof within two Business Days of such change. Any change in the
Broker-Dealer Fee Rate shall be effective on the Auction Date next succeeding
the Auction Agent's receipt of notice of such change.
2.7 SETTLEMENT.
(a) If any Existing Holder selling APS in an Auction fails to deliver
such APS (by authorized book-entry), the BD of any Person that was to have
purchased APS in such Auction may deliver to such Person a number of Shares of
APS that is less than the number of Shares of APS that
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otherwise were to be purchased by such Person. In such event, the number of
Shares of APS to be so delivered shall be determined by BD. Delivery of such
lesser number of Shares of APS shall constitute good delivery. Upon the
occurrence of any such failure to deliver Shares of APS, BD shall deliver to the
Auction Agent the notice required by Section 2.3(f)(ii) hereof. Notwithstanding
the foregoing provisions of this Section 2.7(a), any delivery or non-delivery of
APS which represents any departure from the results of an Auction, as determined
by the Auction Agent, shall be of no effect unless and until the Auction Agent
shall have been notified of such delivery or non-delivery in accordance with the
terms of Section 2.3(f) hereof. The Auction Agent shall have no duty or
liability with respect to enforcement of this Section 2.7(a).
(b) Neither the Auction Agent nor the Corporation shall have any
responsibility or liability with respect to the failure of an Existing Holder, a
Potential Holder or an Agent Member or any of them to deliver APS or to pay for
APS 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 APS 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
to 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 APS 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 therefore, partial
deliveries of APS 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.
3. THE AUCTION AGENT
3.1 DUTIES AND RESPONSIBILITIES.
(a) The Auction Agent is acting solely as agent for the Corporation
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 this Agreement, and no implied covenants
or obligations shall be read into this Agreement, the Auction Agency Agreement,
Auction Procedures or the Settlement Procedures against the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the
Auction Agent shall not be liable for any action taken, suffered, or omitted
or for any error of judgment made by it in the performance of its duties
under this Agreement. The Auction Agent shall not be liable for any error
resulting from the use or reliance on a source of information used in good
faith and without negligence to make any determination, calculation or
declaration hereunder. The Auction Agent shall not be liable for
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any error of judgment made in good faith unless the Auction Agent shall have
been negligent in ascertaining or failing to ascertain the pertinent facts.
In no event shall the Auction Agent be liable for special, punitive, indirect
or consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Auction Agent has been advised of the
likelihood of such loss or damage and regardless of the form of action.
(d) The Auction Agent shall not be: (i) required to, and does not,
make any representations or have any responsibilities as to the validity,
accuracy, value or genuineness of any signatures or endorsements, other than its
own; (ii) obligated to take any legal action hereunder that might, in its
judgment, involve any expense or liability, unless it has been furnished with
indemnity satisfactory to the Auction Agent; and (iii) responsible for or liable
in any respect on account of the identity, Corporation or rights of any Person
(other than itself and its agents and attorneys) executing or delivering or
purporting to execute or deliver any document under this Agreement or any
Broker-Dealer Agreement.
(e) 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.
3.2 RIGHTS OF THE AUCTION AGENT.
(a) The Auction Agent may conclusively rely and shall be fully
protected in acting or refraining from acting upon any communication authorized
by this Agreement and upon any written instruction, notice, request, direction,
consent, report, certificate, share certificate or other instrument, paper or
document believed by it to be genuine. The Auction Agent shall not be liable for
acting upon any communication authorized by this Agreement (including, but not
limited to, any made by telephone, telecopier or other means of electronic
communication acceptable to the parties hereto) which the Auction Agent believes
in good faith to have been given by the Corporation or by BD. The Auction Agent
may record telephone communications with BD.
(b) The Auction Agent may consult with counsel of its own choice, and
the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or risk
its own funds or otherwise incur or become exposed to financial liability in the
performance of its duties hereunder.
(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys and shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed by it with due care.
3.3 AUCTION AGENT'S DISCLAIMER. The Auction Agent makes no representation
as to, and shall have no liability with respect to, the correctness of the
recitals in, or the validity, adequacy or accuracy of, this Agreement, the
Auction Agency Agreement, the Auction Procedures, the offering material used in
connection with the offer and sale of the APS or any other agreement or
instrument executed in connection with the transactions contemplated herein or
in any thereof.
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4. MISCELLANEOUS
4.1 TERMINATION. (a) Any party may terminate this Agreement at any time
upon five (5) days written notice to the other parties, which notice may be
given by facsimile as provided in Section 4.3 hereof. This Agreement shall
automatically terminate upon the redemption of all outstanding APS or upon
termination of the Auction Agency Agreement.
(b) BD represents that it (or if BD does not act as Agent Member, one
of its affiliates) shall make all dividend payments on the APS available in
same-day funds on each Dividend Payment Date to customers that use BD or
affiliate as Agent Member.
4.2 AGENT MEMBER. 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 or participant).
4.3 COMMUNICATIONS. Except for (i) communications authorized to be by
telephone pursuant to this Agreement or the Auction Procedures and (ii)
communications in connection with the Auctions (other than those expressly
required to be in writing), all notices, requests and other communications to
any party hereunder shall be in writing (for the purposes of this Agreement,
telecopy or other means of electronic communication acceptable to the parties
shall be deemed to be in writing) and shall be given to such party, addressed to
it, at its address, telecopy number set forth below and, where appropriate
reference the particular Auction to which such notice relates:
If to BD,
addressed: [insert BD name]
[insert address]
[insert City, State, zip code]
Attention: [insert contact person]
Telephone No.: [insert telephone number]
Facsimile No.: [insert telephone number]
If to the Auction
Agent, addressed: Deutsche Bank Trust Company Americas
Corporate Trust & Agency Services
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 212-797-8600
Telephone No.: 000-000-0000
If to the Corporation,
addressed: [insert Fund name]
c/o UBS Global Asset Management (US) Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: [insert contact person]
Telephone No.: (212) 882- [____]
Facsimile No.: (212) 882- [____]
or such other address or facsimile 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, on behalf of
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the Auction Agent by an Authorized Officer and on behalf of the Corporation by
an Authorized Corporate Officer. Telephone communications may be recorded.
4.4 ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof, and there are no other
representations, endorsements, promises, agreements or understandings, oral,
written or inferred, between the parties relating to the subject matter hereof.
4.5 BENEFITS. Nothing in this Agreement, express or implied, shall give to
any person, other than the Auction Agent, the Corporation and BD and their
respective successors and permitted assigns, any benefit of any legal or
equitable right, remedy or claim under this Agreement.
4.6 AMENDMENT; WAIVER.
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of each of the
parties hereto.
(b) Failure of any party to this Agreement to exercise any right or
remedy hereunder in the event of a breach of this Agreement by any other party
shall not constitute a waiver of any such right or remedy with respect to any
subsequent breach.
4.7 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by, the respective successors and permitted
assigns of each of the parties hereto. This Agreement may not be assigned by any
party hereto absent the prior written consent of the other parties.
4.8 SEVERABILITY. If any clause, provision or section of this Agreement
shall be ruled invalid or unenforceable by any court of competent jurisdiction,
the invalidity or unenforceability of such clause, provision or section shall
not affect any remaining clause, provision or section hereof.
4.9 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.
4.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW, OTHER THAN SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW OF
NEW YORK).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Auction Agent
By:
------------------------------------
Name:
Title:
[[INSERT BROKER-DEALER NAME]]
as Broker-Dealer
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By:
------------------------------------
Name:
Title:
10
Exhibit A
To
BROKER-DEALER
AGREEMENT
AUCTION BID FORM
(Submit only one Order on this Order Form)
[insert Fund name]
Auction Preferred Shares ("APS")
To: Deutsche Bank Trust Company Americas Date of Auction ____________
100 Plaza One Series of APS (indicate by
Xxxxxx Xxxx, XX 00000 Number Designation)
Attn: Xxx Xxxxx _______
Telecopier No. (000) 000-0000
The undersigned Broker-Dealer submits the following Order on behalf of the
Bidder listed below:
Name of Bidder: __________________________________
Bidder placed the Order listed below covering the number of shares
indicated
(complete only one blank):
_________________ number of Shares of APS now held by
Bidder (an Existing Holder), and the Order is a (check one):
|_| Hold Order; or
|_| Bid at a rate of ____%; or
|_| Sell Order;
- or -
_________________ number of Shares of APS not now held
by Bidder (a Potential Holder), and the Order is
a Bid at a rate of ______%
Notes:
(1) If submitting more than one Bid for one Bidder, use additional Order Forms.
(2) If one or more Bids covering in the aggregate more than the outstanding
number of Shares of APS held by any Existing Holder are submitted, such
Bids shall be considered valid in the order of priority set forth in the
Auction Procedures.
(3) A Hold or Sell Order may be placed only by an Existing Holder covering a
number of Shares of APS not greater than the number of Shares of APS
currently held by such Existing Holder.
(4) 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.
(5) Bids may contain no more than three figures to the right of the decimal
point (.001 of 1%).
(6) An Order must be submitted in whole Shares of APS with an aggregate
liquidation preference of $50,000.
[INSERT BROKER-DEALER NAME]
By:
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A-1
Exhibit B
To
BROKER-DEALER
AGREEMENT
(To be used only for transfers made other than
pursuant to an Auction)
TRANSFER FORM
[INSERT FUND NAME]
Auction Preferred Shares ("APS")
Series _____ APS
(indicate by Number Designation)
We are (check one):
|_| the Existing Holder named below; or
|_| the Broker-Dealer for such Existing Holder; or
|_| the Agent Member for such Existing Holder.
We hereby notify you that such Existing Holder will transfer ___
Shares of APS to ____________________ and represent that such transfer complies
with the requirements of the Articles Supplementary of [insert Fund name] and
applicable federal and state law. Upon the request of the Corporation or the
Auction Agent the undersigned will provide such documentation as shall be
reasonably requested to demonstrate such compliance as a condition of the
registration of such transfer.
[INSERT FUND NAME]
By:
------------------------------------
Name:
Title:
(Name of Existing Holder)
(Name of Broker-Dealer)
(Name of Agent Member)
By:
------------------------------------
Name:
Title:
B-1
Exhibit C
To
BROKER-DEALER
AGREEMENT
(To be used only for failures to deliver
APS sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
[INSERT FUND NAME]
Auction Preferred Shares ("APS")
Series _____ APS
(indicate by Number Designation)
Complete either I. or II.
I. We are a Broker-Dealer for ______________ (the "Purchaser"), which
purchased ____ Shares of APS in the Auction held on __________________ from
the seller of such APS.
II. We are a Broker-Dealer for _____________ (the "Seller"), which sold ____
Shares of APS in the Auction held on ____________________ to the purchaser
of such APS.
We hereby notify you that (check one):
_______ the Seller failed to deliver such APS to the Purchaser; or
_______ the Purchaser failed to make payment to the Seller upon delivery of
such APS.
Name:
-----------------------------------
[INSERT BROKER-DEALER NAME]
By:
------------------------------------
Printed Name:
Title:
C-1
Capitalized terms used in this letter, unless otherwise defined herein,
shall have the meanings set forth in the Offering Documents.
(Name of Purchaser)
By:
------------------------------------
Name:
Title:
Address:
--------------------------------
----------------------------------------
----------------------------------------
Dated:
S-1
