Exhibit 99.K7
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FORM OF
BROKER-DEALER AGREEMENT
among
BANKERS TRUST COMPANY
as Auction Agent,
BOULDER TOTAL RETURN FUND, INC.
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
as Broker-Dealer
Dated as of August 3, 2000
Relating to
AUCTION MARKET PREFFERED STOCK ("AMPS")
Of
BOULDER TOTAL RETURN FUND, INC.
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BROKER-DEALER AGREEMENT dated as of August 3, 2000 among (i) Bankers
Trust Company, a New York banking corporation, as auction agent (the "Auction
Agent") (not in its individual capacity but solely as agent) pursuant to
authority granted to it in the Auction Agent Agreement dated as of August 3,
2000 (the "Auction Agent Agreement"), among the Auction Agent and Boulder Total
Return Fund, Inc., a Maryland corporation (the "Company"), (ii) the Company and
(iii) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated as broker-dealer
(together with its successors and assigns as such hereinafter referred to as
"BD").
The Company intends to issue one or more series of Auction Market
Preferred Stock, liquidation preference $100,000 per share (the "AMPS"),
pursuant to one or more Articles Supplementary. The Securities Depository shall
maintain in book-entry form record of the beneficial interests in the AMPS.
References to "Shares of AMPS" or "AMPS" in this Agreement shall refer only to
the beneficial interests in the AMPS 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
Company and BD agree as follows:
1. Definitions and Rules of Construction.
1.1 Terms Defined by Reference to the Articles Supplementary. When
used with reference to a particular series of AMPS, initially capitalized terms
not defined herein shall have the respective meanings ascribed to such terms in
the Articles Supplementary relating to such series of AMPS.
1.2 Terms Defined Herein. As used herein and in the Settlement
Procedures (as defined below), the following terms shall have the following
meanings, unless the context otherwise requires:
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(a) "Articles Supplementary" shall mean, with respect to a
particular series of AMPS, the Articles Supplementary of the Company relating to
such series filed with the State Department of Assessments and Taxation of
Maryland.
(b) "Auction" shall have the meaning specified in Section 2.1
hereof.
(c) "Auction Agent Agreement" shall mean the Auction Agent
Agreement dated as of August 3, 2000 between the Company and the Auction Agent.
(d) "Auction Procedures" shall mean, with respect to a
particular series of AMPS, the Auction Procedures that are set forth in the
Articles Supplementary relating to such series of AMPS.
(e) "Authorized Company Officer" shall mean each Executive
Vice President, Senior Vice President, Vice President, Assistant Vice President,
Secretary, Assistant Secretary, Treasurer and Assistant Treasurer of the Company
and any other officer or employee of the Company designated as such by any of
the foregoing for purposes of this Agreement in a communication to the Auction
Agent and BD.
(f) "Authorized Officer" shall mean each Senior Vice
President, Vice President, Assistant Vice President and Associate of the Auction
Agent assigned to its Corporate Trust & Agency Services and every other officer
or employee of the Auction Agent designated as such by any of the foregoing for
purposes of this Agreement in a communication to BD and the Company.
(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 and the Company.
(h) "Existing Holders Registry" shall mean the register
maintained by the Auction Agent pursuant to Section 2.2 of the Auction Agent
Agreement.
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(i) "Holder" shall mean a registered owner of any AMPS.
(j) "Settlement Procedures" shall mean the Settlement
Procedures attached to the Auction Agent Agreement as Exhibit C thereto.
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 AMPS that may be issued.
2. The Auctions.
2.1 Purpose; Incorporation by Reference of Auction Procedures;
Settlement Procedures; Purchaser's Letter; Private Placement 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 rate per annum at which dividends will accrue with respect to each series of
AMPS for the next Dividend Period. Each periodic operation of such procedures is
hereinafter referred to as an "Auction." A separate Auction will be conducted
on a different Auction date for each series of AMPS and, accordingly, as
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used herein, "AMPS" means the series of AMPS subject to the related Auction and
the provisions hereof shall apply equally and separately to each such series of
AMPS.
(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) The provisions contained in paragraphs 4(b) and 4(d)(i) of
Part I of the Articles Supplementary concerning the notification of a Special
Dividend Period will be followed by the Auction Agent and BD and the provisions
contained therein are incorporated herein by reference in their 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.
(d) BD is delivering herewith, or has previously delivered, a
Purchaser's Letter executed by BD. BD agrees to act as, and assumes the
obligations of and limitations and restrictions placed upon, a Broker-Dealer
under this Agreement.
(e) BD agrees to collect from each purchaser of AMPS from or
through BD a Purchaser's Letter, substantially in the form of Exhibit E attached
hereto, and to otherwise act as, and assume the obligations of and limitations
and restrictions placed upon, a Broker-Dealer under the Articles Supplementary.
BD agrees that Purchaser's Letters shall be available for inspection by the
Auction Agent and the Company during normal business hours. BD agrees to handle
customer orders in accordance with its respective duties under applicable
securities laws and rules.
(f) BD acknowledges and agrees that each provision of the
Articles Supplementary that requires the Company to instruct or cause BD to
perform an obligation or procedure is hereby incorporated herein by reference
and that this Agreement shall constitute such instructions and BD hereby agrees
to perform such obligations and procedures
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without further request by or instructions from the Company.
(g) BD may participate in Auctions for its own account,
provided that BD has executed a Purchaser's Letter. However, the Company may by
notice to BD and to the Auction Agent prohibit BD from submitting Bids in
Auctions for its own account, provided that BD and the Auction Agent may
continue to submit Hold Orders and Sell Orders for its own account.
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 of the 30-Day "AA" Composite Commercial
Paper Rate and the Maximum Rate.
(b) As promptly as practicable after determining each Auction
Date, but not later than 9:15 a.m. on the Business Day next preceeding such
Auction Date, the Auction Agent shall notify BD, by such means as the Auction
Agent deems practicable, of the scheduled date of such Auction Date. In the
event that the Auction Date for any Auction shall be changed after the Auction
Agent has given such notice or the notice referred to in clause (vii) of
paragraph (a) of the Settlement Procedures, the Auction Agent, by such means as
the Auction Agent deems practicable, shall give notice of such change to BD not
later than the earlier of 9:15 a.m. on the new Auction Date and 9:15 a.m. on the
old Auction Date. Thereafter, BD shall promptly notify customers of BD that are
Existing Holders of such change in the Auction Date.
(c) The Company or the Auction Agent from time to time may
request BD to provide it with a list of the respective customers of BD that are
Existing Holders or beneficial owners of AMPS or the number of customers for
whose account BD is recorded as the Existing Holder or the Holder. BD shall
comply with any such request, and the Auction Agent and the Company shall keep
confidential any such information, including information received as to the
identity of Bidders in any Auction, and shall not disclose
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any such information so provided to any person other than the other parties
hereto.
(d) The Auction Agent shall not be required to, but may in its
discretion, accept a Purchaser's Letter for any Potential Holder or amendment to
a Purchaser's Letter of any Existing Holder received after 3:00 P.M. on the
Business Day next preceding an Auction.
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 Company, which consent shall not be
unreasonably withheld. The Auction Agent shall give notice of any such change to
BD. Such notice shall be received prior to the first Auction Date on which any
such change shall be effective.
Time Event
---- -----
By 9:30 a.m. Auction Agent advises the Company and the
Broker-Dealer of the applicable Maximum Rate and
the 30-Day "AA" Composite Commercial Paper Rate
used in determining such 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-Dealer as provided in the Articles
Supplementary. Submission Deadline is 1:00 p.m.
Not earlier than Auction Agent makes determinations as to Available
1:00 p.m. AMPS, Sufficient Clearing Bids and the Winning Bid
Rate pursuant to the Articles Supplementary.
By approximately Auction Agent advises the Company
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3:00 p.m. of results of Auction as provided in the Articles
Supplementary and of the Auction Rate for the next
Dividend Period. Submitted Bids and Submitted Sell
Orders are accepted and rejected in whole or in
part and AMPS are allocated as provided in the
Articles Supplementary. Auction Agent gives
notice of Auction results to BD as set forth in
Section 2.4(a) hereof.
(b) BD shall make available 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 AMPS.
(c) BD shall not solicit Bids or solicit any offer to buy or
offer to sell shares of AMPS by any form of general solicitation or
advertisement, including, but not limited to, any advertisement, article, notice
or other communication published in any newspaper, magazine or similar medium or
broadcast over television or radio.
(d) BD agrees to maintain a list of Potential Holders, and to
contact the Potential Holders on such list on or prior to each Auction Date for
the purposes set forth in the Articles Supplementary.
(e) BD agrees not to sell, assign or dispose of any AMPS to,
or place any Orders on behalf of, any Person who has not delivered a signed
Purchaser's Letter to BD or the Auction Agent. BD may require each prospective
purchaser to execute and deliver to BD a Purchaser's Letter in a form different
from that attached hereto as Exhibit E, provided that such different form shall
contain, in addition to any other information, substantially the same
information as the form attached as such Exhibit E.
(f) 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
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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.
(g) BD shall deliver to the Auction Agent (i) a written
notice, substantially in the form attached hereto as Exhibit B, of transfers of
AMPS made through BD by an Existing Holder to another Person other than pursuant
to an Auction, (ii) a written notice, substantially in the form attached hereto
as Exhibit C, of the failure of any AMPS to be transferred to or by any Person
that purchased or sold AMPS through BD pursuant to an Auction and (iii) a
written notice, substantially in the form attached hereto as Exhibit D, upon
learning that any of the representations and warranties contained in a
Purchaser's Letter are not true with respect to any prospective purchaser or
Existing Holder of AMPS. The Auction Agent is not required to accept any notice
delivered pursuant to the terms of the foregoing sentence with respect to an
Auction unless it is received by the Auction Agent by 3:00 p.m. on the Business
Day next preceding the applicable Auction Date.
2.4 Notices.
(a) On each Auction Date, the Auction Agent shall notify BD by
telephone or facsimile of the results of the Auction as set forth in paragraph
(a) of the Settlement Procedures. By approximately 10:30 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.
(c) The Auction Agent shall deliver to BD after receipt all
notices and certificates which the Auction Agent is required to deliver to BD
pursuant to the Auction Agent Agreement at the times and in the manner set forth
in the Auction Agent Agreement.
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(d) The Company shall deliver to BD after receipt all notices
and certificates which the Company is required to deliver to BD pursuant to the
Auction Agent Agreement and the Articles Supplementary at the times and in the
manner set forth therein.
(e) If the Company delivers to the Auction Agent a notice
specifying that each purchaser of AMPS of a particular series that was issued in
a private placement must have a minimum amount of total assets or net worth, the
Auction Agent shall promptly notify the BD thereof. Upon receipt of such notice,
the BD shall promptly notify the Existing Holders thereof. The BD, the Auction
Agent and the Company shall cooperate to ensure that (a) each Existing Holder
not then constituting a Qualifying Purchaser will place a Sell Order with
respect to all AMPS owned by such Existing Holder in the Auction immediately
following the date of such notice, and (b) if requested by the Company, Existing
and Potential Holders deliver to the Company, the Auction Agent and the BD
amended Purchaser's Letters in which such Existing Holders and Potential Holders
represent that they are Qualifying Purchasers, provided, however, that Auction
Agent shall have no duty or liability with respect to enforcement of this
Section.
2.5 Service Charge to Be Paid to BD.
(a) On the initial Dividend Distribution Date for a particular
series of AMPS the Company shall pay to BD the product of (i) a fraction, the
numerator of which is the number of days in the initial Dividend Period with
respect to such series and the denominator of which is 360 days, times (ii) the
Initial Broker-Dealer Fee Rate times (iii) the aggregate liquidation preference
of the AMPS of such series placed by BD on the Date of Original Issue thereof.
(b) On each Dividend Distribution Date (other than the initial
Dividend Distribution Date) for a particular series of AMPS following each
Auction Date, the Company shall pay to BD an amount initially equal to the
product of the Broker-Dealer Fee Rate times (i) if an Auction was held on such
Auction Date, the sum of (A) the
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aggregate liquidation preference of the AMPS of such series placed by BD in such
Auction that were (1) the subject of submitted Bids of Existing Holders
submitted by BD and continued to be held as a result of such submission, (2) the
subject of Submitted Bids of Potential Holders submitted by BD and purchased as
a result of such submission or (3) the aggregate liquidation preference of the
AMPS of such series subject to valid Hold Orders (determined in accordance with
the Articles Supplementary) submitted to the Auction Agent by BD and (B) the
aggregate liquidation preference of the AMPS of such series deemed to be subject
to Hold Orders by Existing Holders pursuant to the Articles Supplementary that
were acquired by such Existing Holders through BD, or (ii) if an Auction was not
held on such Auction Date, the aggregate liquidation preference of the AMPS of
such series that were acquired by Existing Holders through BD multiplied by a
fraction, the numerator of which is the number of days in the Dividend Period to
which such Dividend Distribution Date for such series relates and the
denominator of which is 360. For purposes of subclauses (i) and (ii) of the
foregoing sentence, if any Existing Holder who acquired AMPS through BD
transfers those AMPS to another Person other than pursuant to an Auction, then
the broker-dealer for the AMPS so transferred shall continue to be BD.
(c) The Broker-Dealer Fee Rate shall be the prevailing rate
received by broker-dealers for rendering comparable services to others. The
Auction Agent shall advise the Company at least annually, at the Company's
request, of its view of such prevailing rate. If the then-current Broker-Dealer
Fee Rate is not, in the opinion of the Company and the Auction Agent, the
prevailing rate, the Company shall change the Broker-Dealer Rate so that it
equals such prevailing rate. The initial Broker-Dealer Fee Rate shall be 0.25%
per annum.
If the Company determines to increase the rate at which the
Broker-Dealer Fee accrues, the Auction Agent shall mail a notice thereof to the
Existing Holders within two Business Days of such change. Any change in the
Broker-Dealer Fee Rate shall be effective on the Auction Date next succeeding
such change.
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2.6 Settlement.
(a) If any Existing Holder selling AMPS in an Auction fails to
deliver such AMPS (by authorized book-entry), the BD of any Person that was to
have purchased AMPS in such Auction may deliver to such Person a number of
shares of AMPS that is less than the number of shares of AMPS that otherwise
were to be purchased by such Person. In such event, the number of shares of AMPS
to be so delivered shall be determined by BD. Delivery of such lesser number of
shares shall constitute good delivery. Upon the occurrence of any such failure
to deliver shares, BD shall deliver to the Auction Agent the notice required by
Section 2.3(g)(ii) hereof. Notwithstanding the foregoing provisions of this
Section 2.6(a), any delivery or non-delivery of AMPS 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(g)(ii) hereof. The Auction Agent shall have no duty or liability
with respect to enforcement of this Section 2.6(a).
(b) Neither the Auction Agent nor the Company 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 AMPS or to pay for
AMPS sold or purchased pursuant to the Auction Procedures or otherwise.
3.0 The Auction Agent.
3.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the
Company hereunder and owes no fiduciary duties 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 against the Auction
Agent.
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(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 of judgment
made in good faith unless the Auction Agent shall have been negligent in
ascertaining or failing to ascertain the pertinent facts.
3.2 Rights of the Auction Agent.
(a) The Auction Agent may rely and shall be protected in
acting or refraining from acting upon any communication authorized 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 telephone communication authorized by this Agreement which the Auction
Agent believes in good faith to have been given by the Company or by BD. The
Auction Agent may record telephone communications with BD.
(b) Before the Auction Agent acts or refrains from acting, 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 except as may be required
as a result of its own negligence or bad faith.
(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 conduct or negligence on the part of any agent or
attorney appointed by it with due care hereunder.
4.0 Miscellaneous.
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4.1 Termination. Any party may terminate this Agreement at any time
upon notice to the other parties, which notice may be given by facsimile as
provided in Section 4.4 hereof. This Agreement shall automatically terminate
upon the redemption of all outstanding AMPS or upon termination of the Auction
Agent Agreement.
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 Indemnification of Auction Agent. BD agrees to indemnify the
Auction Agent against, and hold it harmless from, any loss, liability or claim
relating to, or in any way connected with, or arising hereunder caused solely by
the failure of BD to perform its obligations hereunder.
4.4 Communications. Except for (i) communications authorized to be
made by telephone pursuant to this Agreement or the Auction Procedures and (ii)
communications in connection with the Auctions (other than those expressly
required to be in writing), all notices, requests and other communications to
any party hereunder shall be in writing (including facsimile or similar writing)
and shall be given to such party, addressed to it, at its address or facsimile
number set forth below:
If to BD, c/o Merrill Lynch, Pierce, Xxxxxx
addressed: & Xxxxx Incorporated
4 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Atten: Auction Securities Desk
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Auction Bankers Trust Company
Agent, addressed: 0 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Auction Rate Securities
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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If to the Company, Boulder Total Return Fund, Inc.
addressed: 0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Atten: Auction Securities Desk
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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 the Auction Agent by an Authorized Officer and on behalf of the Company by an
Authorized Company Officer. Telephone communications may be recorded.
4.5 Entire Agreement. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof, and there are no
other representations, endorsements, promises, agreements or understandings,
oral, written or inferred, between the parties relating to the subject matter
hereof.
4.6 Benefits. Nothing in this Agreement, express or implied, shall
give to any person, other than the Auction Agent, the Company and BD and their
respective successors and permitted assigns, any benefit of any legal or
equitable right, remedy or claim under this Agreement.
4.7 Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled
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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 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.
4.8 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.
4.9 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.
4.10 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the date first above written.
BANKERS TRUST COMPANY,
as Auction Agent
By: _____________________________________
Name: _______________________________
Title: _______________________________
BOULDER TOTAL RETURN FUND, INC.
By: _____________________________________
Name: _______________________________
Title: _______________________________
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED,
as Broker-Dealer
By: _____________________________________
Name: _______________________________
Title: _______________________________
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Exhibit A
To BROKER-DEALER
AGREEMENT
AUCTION BID FORM
(Submit only one Order on this Order Form)
Boulder Total Return Fund, Inc.
Auction Market Preferred Stock ("AMPS")
To: Bankers Trust Agreement Date of Auction ______________
0 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Series AMPS (if applicable,
Attention: Auction Rate Series designation
Securities A, B, C, D, etc.)
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 AMPS 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 AMPS 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 the AMPS 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 the AMPS not greater than the number of shares
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 AMPS with an aggregate
liquidation preference of $100,000.
Name of Broker-Dealer: __________________________
By: __________________________
B-1
Exhibit B
To BROKER-DEALER
AGREEMENT
(To be used only for transfers made other than
pursuant to an Auction)
TRANSFER FORM
Boulder Total Return Fund, Inc.
Auction Market Preferred Stock ("AMPS")
Series AMPS (indicate, if applicable,
Series designation A, B, C, D, etc.)
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 AMPS to ____________________.
________________________________________
(Name of Existing Holder)
________________________________________
(Name of Broker-Dealer)
________________________________________
(Name of Agent Member)
By: ____________________________________
Printed Name:
Title:
B-2
Exhibit C
To BROKER-DEALER
AGREEMENT
(To be used only for failures to deliver
AMPS sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
Boulder Total Return Fund, Inc.
Auction Market Preferred Stock ("AMPS")
Series ____ AMPS (indicate, if applicable, by
Series designation A, B, C, D, etc.)
Complete either I. or II.
I. We are a Broker-Dealer for ______________ (the "Purchaser"), which
purchased ____ shares of AMPS in the Auction held on __________________
from the seller of such AMPS.
II. We are a Broker-Dealer for _____________ (the "Seller"), which sold ____
shares of AMPS in the Auction held on ____________________ to the
purchaser of such AMPS.
We hereby notify you that (check one):
__________ the Seller failed to deliver such AMPS to the Purchaser; or
__________ the Purchaser failed to make payment to the Seller upon delivery of
such AMPS.
Name: __________________________
(Name of Broker-Dealer)
By: ____________________________
Printed Name:
Title:
C-1
Exhibit D
To BROKER-DEALER
AGREEMENT
(To be used only upon advice that representations and
warranties contained in a Purchaser's Letter are not true)
NOTICE OF INCORRECT REPRESENTATIONS AND WARRANTIES
IN A PURCHASER'S LETTER
Boulder Total Return Fund, Inc.
Auction Market Preferred Stock ("AMPS")
Date:
Series AMPS (indicate, if applicable, by
Series designation A, B, C, D, etc.)
We are a Broker-Dealer for ____________________ (the "Purchaser")
which purchased or proposed to purchase shares of AMPS in the Auction held on
___________________ or is an Existing Holder of ___________________ shares of
AMPS, and it has come to our attention that certain of the representations and
warranties contained in the Purchaser's Letter of such Purchaser or of such
Existing Holder are not or are no longer true and correct.
Name: __________________________________
(Name of Broker-Dealer)
By: ____________________________________
Printed Name:
Title:
D-1
EXHIBIT E
E-1
TABLE OF CONTENTS
Page
----
1. Definitions and Rules of Construction.................................. 1
1.1 Terms Defined by Reference to the Articles Supplementary....... 1
1.2 Terms Defined Herein........................................... 1
1.3 Rules of Construction.......................................... 3
2. The Auctions........................................................... 3
2.1 Purpose; Incorporation by Reference of Auction Procedures;
Settlement Procedures; Purchaser's Letter; Private Placement
Procedures................................................... 3
2.2 Preparation for Each Auction................................... 5
2.3 Auction Schedule; Method of Submission
of Orders.................................................... 6
2.4 Notices........................................................ 9
2.5 Service Charge to Be Paid to BD................................ 10
2.6 Settlement..................................................... 11
3. The Auction Agent...................................................... 12
3.1 Duties and Responsibilities.................................... 12
3.2 Rights of the Auction Agent.................................... 12
4. Miscellaneous.......................................................... 13
4.1 Termination.................................................... 13
4.2 Agent Member................................................... 13
4.3 Indemnification of Auction Agent............................... 13
4.4 Communications................................................. 13
4.5 Entire Agreement............................................... 15
4.6 Benefits....................................................... 15
4.7 Amendment; Waiver.............................................. 15
4.8 Successors and Assigns......................................... 15
4.9 Severability................................................... 15
4.10 Execution in Counterparts...................................... 15
4.11 Governing Law.................................................. 16
Exhibit A -- Form of Auction Bid Form
Exhibit B -- Form of Transfer Form
Exhibit C -- Form of Notice of a Failure to Deliver
Exhibit D -- Form of Notice of Incorrect Representations
Exhibit E -- Form of Purchaser's Letter
Schedule A -- Settlement Procedures
i
