EXHIBIT (k)(viii)
BROKER-DEALER AGREEMENT BETWEEN THE FUND, BANKERS TRUST COMPANY
& XXXXX-XXXXXX, INC.
FORM OF
BROKER-DEALER AGREEMENT
among
BANKERS TRUST COMPANY
as Auction Agent,
BOULDER TOTAL RETURN FUND, INC.
and
PaineWebber,
as Broker-Dealer
Dated as of August 3, 2000
Relating to
AUCTION MARKET PREFFERED STOCK ("AMPS")
Of
BOULDER TOTAL RETURN FUND, INC.
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)
PaineWebber 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:
(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.
(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 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 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 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
1:00 p.m. as to Available AMPS, Sufficient Clearing Bids and the
Winning Bid Rate pursuant to the Articles Supplementary.
By approximately Auction Agent advises the Company
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 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.
(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 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.
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. 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.
(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. Miscellaneous.
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, PaineWebber
000 Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 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
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
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 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.
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: _________________
PaineWebber,
as Broker-Dealer
By:
Name: _______________
Title: _______________
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: __________________________
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:
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:
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:
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Printed Name:
Title:
EXHIBIT E
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
