EXHIBIT 99.2(k)(viii)
AUCTION AGENCY AGREEMENT
BOULDER GROWTH & INCOME FUND, INC.
AUCTION AGENCY AGREEMENT
dated as of __________, 2005
relating to the
AUCTION MARKET PREFERRED STOCK
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Auction Agent
AUCTION AGENCY AGREEMENT
This Auction Agency Agreement (this "Agreement"), dated as of _________ __,
2005, is between BOULDER GROWTH & INCOME FUND, INC. (the "Company") and DEUTSCHE
BANK TRUST COMPANY AMERICAS.
The Company proposes to issue an aggregate amount of 1,000 shares of its
Auction Market Preferred Stock, $0.01 par value per share, liquidation
preference of $25,000 per share (the "AMP Shares"), authorized by, and subject
to the terms and conditions of, the Articles Supplementary Establishing and
Fixing the Rights and Preferences of Auction Market Preferred Stock (the
"Statement").
The Company desires that Deutsche Bank Trust Company Americas perform
certain duties as agent in connection with each Auction of AMP Shares (in such
capacity, the "Auction Agent"), and as the transfer agent, registrar, dividend
paying agent and redemption agent with respect to the AMP Shares (in such
capacity, the "Paying Agent"), upon the terms and conditions set forth in this
Agreement, and the Company hereby appoints Deutsche Bank Trust Company Americas
as said Auction Agent and Paying Agent in accordance with those terms and
conditions.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Company and the Auction Agent agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined by Reference to the Statement.
Capitalized terms used herein but not defined herein shall have the
respective meanings specified in the Statement.
1.2 Certain Defined Terms.
As used herein and in the Settlement Procedures, the following terms shall
have the following meanings, unless the context otherwise requires:
(a) "Agent Member" shall mean a member of, or participant in, the
Securities Depository that will act on behalf of a Beneficial Owner of one
or more AMP Shares or on behalf of a Potential Beneficial Owner.
(b) "Auction" shall have the meaning specified in Section 2.1 hereof.
(c) "Auction Procedures" shall mean the procedures as from time to
time in effect for conducting Auctions that are set forth in Part II of the
Statement.
(d) "Authorized Officer" shall mean each 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 Company.
(e) "Broker-Dealer Agreement" shall mean each agreement between the
Auction Agent and a broker-dealer substantially in the form attached hereto
as Exhibit A.
(f) "Closing" shall mean the date the Company consummates the
transactions for the issuance and sale of the AMP Shares.
(g) "Company Officer" shall mean 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 Secretary and each Assistant Treasurer of the Company and every
other officer or employee of the Company designated as a "Company Officer"
for purposes hereof in a notice from the Company to the Auction Agent.
(h) "Holder" means, with respect to AMP Shares, the registered holder
of AMP Shares as the same appears on the share ledger or share records of
the Company.
(i) "Rate Multiple" shall have the meaning assigned to it in Section
2.9.
(j) "Statement" shall mean the Articles Supplementary Establishing and
Fixing the Rights and Preferences of Auction Rate Preferred Stock of the
Company in effect at the time the Registration Statement relating to the
AMP Shares is declared effective by the Securities and Exchange Commission,
specifying the powers, preferences and rights of the AMP Shares.
(k) "Settlement Procedures" shall mean the Settlement Procedures
attached as Exhibit A to the Broker-Dealer Agreement.
(l) "Submission Deadline" shall mean 1:00 p.m. Eastern time, on any
Auction Date or such other time on any Auction Date by which the
Broker-Dealers are required to submit Orders to the Auction Agent as
specified by the Auction Agent from time to time.
(m) "Submission Processing Deadline" shall mean the earlier of (i) 40
minutes after the Submission Deadline and (ii) the time when the Auction
Agent begins to disseminate the results of the Auction to the
Broker-Dealers.
(n) "Submission Processing Representation" shall have the meaning
specified in Section 2.8 hereof.
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.
II. THE AUCTION.
2.1 Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) The Board of Directors of the Company has adopted a
resolution appointing Deutsche Bank Trust Company Americas as Auction
Agent for purposes of the Auction Procedures. The Auction Agent hereby
accepts such appointment and agrees that, on each Auction Date, it
shall follow (i) the procedures set forth in this Section II and (ii)
the Auction Procedures for the purpose of determining the Applicable
Rate for the AMP Shares for the next Dividend Period. Each periodic
operation of such procedures is hereinafter referred to as an
"Auction."
(b) All of the provisions contained in the Auction Procedures and
in 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 set forth fully herein. In
the case of any conflict between the terms of any document
incorporated herein by reference and the terms hereof, the terms in
this agreement shall control.
2.2 Preparation for Each Auction; Maintenance of Registry of Existing
Holders.
(a) As of the date hereof, the Company shall provide the Auction
Agent with a list of the Broker-Dealers and shall deliver to the
Auction Agent for execution by the Auction Agent a Broker-Dealer
Agreement signed by each such Broker-Dealer. The Auction Agent shall
keep such list current and accurate and shall indicate thereon the
identity of each Existing Holder, if any, whose most recent Order was
submitted and resulted in such Existing Holder continuing to hold or
purchase AMP Shares. Not later than five Business Days prior to any
Auction Date for which any change in such list of Broker-Dealers is to
be effective, the Company shall notify the Auction Agent in writing of
such change and, if any such change is the addition of a Broker-Dealer
to such list, the Company shall cause to be delivered to the Auction
Agent for execution by the Auction Agent a Broker-Dealer Agreement
signed by such Broker-Dealer. The Auction Agent shall have entered
into a Broker-Dealer Agreement with each Broker-Dealer prior to the
participation of any such Broker-Dealer in any Auction.
(b) In the event that the Auction Date for any Auction shall be
changed after the Auction Agent shall have given the notice referred
to in clause (vii) of paragraph (a) of the Settlement Procedures, the
Auction Agent, by such means as the Auction Agent reasonably deems
practicable, shall give notice of such change to the Broker-Dealers
not later than the earlier of 9:15 a.m. on the new Auction Date or
9:15 a.m. on the old Auction Date.
(c) The provisions contained in [Part I, Section 4] of the
Statement concerning Special Dividend Periods and the notification of
a Special Dividend Period will be followed by the Company and, to the
extent applicable, the Auction Agent, 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.
(d) On each Auction Date, the Auction Agent shall determine the
Maximum Rate. Not later than 9:30 a.m. on each Auction Date, the
Auction Agent shall notify the Company and the Broker-Dealers of the
Maximum Rate.
(ii) If the Reference Rate is the applicable "AA" Composite
Commercial Paper Rate and such rate is to be based on rates supplied
by Commercial Paper Dealers and one or more of the Commercial Paper
Dealers shall not provide a quotation for the determination of the
applicable "AA" Composite Commercial Paper Rate, the rate shall be
determined on the basis of the quotations (or quotation) furnished by
the remaining Commercial Paper Dealer(s), if any, or, if there are no
such Commercial Paper Dealers, by a nationally recognized dealer in
commercial paper of such issuers then making such quotations selected
by the Company.
(e) (i) The Auction Agent shall maintain a current registry of
the Existing Holders of the AMP Shares for purposes of each individual
Auction based on the information provided to it from time to time by
the Broker-Dealer. The Company shall use commercially reasonable
efforts to provide or cause to be provided to the Auction Agent within
ten Business Days following the date of the Closing a list of the
initial Existing Holders of AMP Shares, the number of shares purchased
by each such Existing Holder and the respective Broker-Dealer of each
such Existing Holder through which such Existing Holder purchased such
AMP Shares. The Auction Agent may rely upon, as conclusive evidence of
the identities of the Existing Holders, such list, the results of each
Auction and notices from any Existing Holder, the Agent Member of any
Existing Holder or the Broker-Dealer of any Existing Holder with
respect to such Existing Holder's transfer of any AMP Shares to
another Person.
(ii) In the event of any partial redemption of AMP Shares, upon
notice by the Company to the Auction Agent of such partial redemption,
the Auction Agent promptly shall request the Securities Depository to
notify the Auction Agent of the identities of the Agent Members (and
the respective numbers of AMP Shares) from the accounts of which AMP
Shares have been called for redemption and the person or department at
such Agent Member to contact regarding such redemption. At least two
Business Days prior to the Auction preceding the date of redemption,
the Auction Agent shall request each Agent Member so identified to
disclose to the Auction Agent (upon selection by such Agent Member of
the Existing Holders whose AMP Shares are to be redeemed) the number
of AMP Shares of each such Existing Holder, if any, to be redeemed by
the Company, provided that the Auction Agent has been furnished with
the name and telephone number of a person or department at such Agent
Member from which it is to request such information. In the absence of
receiving any such information with respect to an Existing Holder,
from such Existing Holder's Agent Member or otherwise, the Auction
Agent may continue to treat such Existing Holder as having ownership
of the number of AMP Shares shown in the Auction Agent's registry of
Existing Holders.
(iii) The Auction Agent shall register a transfer of the
ownership of AMP Shares from an Existing Holder to another Existing
Holder, or to another Person if permitted by the Company, only if (A)
such transfer is made pursuant to an Auction or (B) if such transfer
is made other than pursuant to an Auction, the Auction Agent has been
notified of such transfer in writing, in a notice substantially in the
form of Exhibit C to the Broker-Dealer Agreement, by such Existing
Holder or by the Agent Member of such Existing Holder only to or
through a Broker-Dealer that has entered into a Broker-Dealer
Agreement with the Auction Agent and the Company or other persons as
the Company permits. The Auction Agent is not required to accept any
notice of transfer delivered for an Auction unless it is received by
the Auction Agent by 3:00 p.m. on the Business Day preceding the
Auction. The Auction Agent shall rescind a transfer made on the
registry of the Existing Holders of any AMP Shares if the Auction
Agent has been notified in writing, in a notice substantially in the
form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member
or the Broker-Dealer of any Person that (i) purchased any AMP Shares
and the seller failed to deliver such AMP Shares or (ii) sold any AMP
Shares and the purchaser failed to make payment to such Person upon
delivery to the purchaser of such AMP Shares.
(f) The Auction Agent may, but shall have no obligation to,
request that the Broker-Dealers, as set forth in [Section 3.2(c)] of
the Broker-Dealer Agreements, provide the Auction Agent with a list of
their respective customers that such Broker-Dealers believe are
Beneficial Owners of AMP Shares. The Auction Agent shall keep
confidential any such information and shall not disclose any such
information so provided to any Person other than the relevant
Broker-Dealer and the Company, 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
body, judicial or quasi-judicial agency or authority having the
authority to compel such disclosure or (b) it is advised by its
counsel in writing that its failure to do so would be unlawful.
2.3 Auction Schedule.
The Auction Agent shall conduct Auctions on the Business Day immediately
prior to the start of each Dividend Period in accordance with the schedule set
forth below. Such schedule may be changed by the Auction Agent with the consent
of the Company, which consent shall not be withheld unreasonably. The Auction
Agent shall give notice of any such change to each Broker-Dealer. 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. The Auction Agent shall advise the Company
and the Broker-Dealers of the Reference Rate
and the Maximum Rate as set forth in Section
2.2(d)(i) hereof.
9:30 a.m. - 1:00 p.m. Broker-Dealers assemble information received from
each Bidder (Existing Owners or Potential Owners)
and any internally initiated Broker-Dealers'
Bids in accordance with the Auction
Procedures.
Not later than Submission Processing Deadline The Auction Agent shall accept any Orders submitted
subject to a Submission Processing Representation
and make determinations pursuant to [Part II,
Section 3] of the Statement.
By approximately 3:00 p.m. The Auction Agent shall advise the Company of the
results of the Auction as provided in [Part II,
Section 3] of the Statement. Submitted Bid Orders
and Submitted Sell Orders will be accepted and
rejected in whole or in part and AMP Shares will be
allocated as provided in [Part II, Section 4] of the
Statement.
The Auction Agent shall give notice
of the Auction results as set forth in Section 2.4 hereof.
The Auction Agent will follow the Bond Market Association's Market Practice
U.S. Holiday Recommendations for shortened trading days for the bond markets
(the "BMA Recommendation") unless the Auction Agent is instructed otherwise. In
the event of a BMA Recommendation on an Auction Date, the Submission Deadline
will be 11:30 a.m., instead of 1:00 p.m., and as a result the notice set forth
in Section 2.4 will occur earlier.
2.4 Notice of Auction Results.
The Auction Agent will advise each Broker-Dealer who submitted a Bid or
Sell Order in an Auction whether such Bid or Sell Order was accepted or rejected
in whole or in part and of the Applicable Rate for the next Dividend Period for
the related AMP Shares by telephone or other electronic means acceptable to the
parties. The Auction Agent, unless instructed otherwise in writing by the
Company, is authorized to release the Winning Bid Rate after each auction for
public dissemination.
2.5 Broker-Dealers.
(a) Not later than 3:00 p.m. on each Dividend Payment Date, the
Auction Agent after each Auction will pay to each Broker-Dealer, from
trusts provided by the Company, a service charge in the amount equal to:
(i) in the case of any Auction immediately preceding a Dividend Period of
less than one year, the product of (A) a fraction the numerator of which is
the number of days in the Dividend Period (calculated by counting the first
day of such Dividend Period but excluding the last day thereof) and the
denominator of which is 360, times (B) ______% times (C) $_______ times (D)
the sum of the aggregate number of AMP Shares placed by such Broker-Dealer,
or (ii) the amount mutually agreed upon by the Company and the
Broker-Dealers in the case of any Auction immediately preceding a Dividend
Period of one year or longer. For the purposes of the preceding sentence,
the AMP Shares shall be placed by a Broker-Dealer if such shares were (1)
the subject of Hold Orders deemed to have been submitted to the Auction
Agent by the Broker-Dealer and were acquired by the Broker-Dealer for its
own account or were acquired by the Broker-Dealer for its customers who are
Beneficial Owners or (2) the subject of an order submitted by the
Broker-Dealer that is (a) a Submitted Bid of an Existing Holder that
resulted in the Existing Holder continuing to hold the shares as a result
of the Auction or (b) a Submitted Bid of a Potential Holder that resulted
in the Potential Holder purchasing the shares as a result of the Auction or
(3) a valid Hold Order. For the avoidance of doubt, only one Broker-Dealer
shall be considered to have placed a particular AMP Share at any particular
Auction for purposes of this Subsection (a).
(b) The Company shall not designate any Person to act as a
Broker-Dealer, or permit an Existing Holder or a Potential Beneficial Owner
to participate in Auctions through any Person other than a Broker-Dealer,
without the prior written approval of the Auction Agent, which approval
shall not be withheld unreasonably. Notwithstanding the foregoing, the
Company may designate an Affiliate, ___________, ___________ or
_____________ to act as a Broker-Dealer.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement as
set forth therein if so directed by the Company.
(d) Subject to Subsection (b) above, the Auction Agent from time to
time shall enter into such Broker-Dealer Agreements as the Company shall
request in writing.
(e) The Auction Agent shall maintain a list of Broker-Dealers.
2.6 Ownership of AMP Shares and Submission of Bids by the Company and Its
Affiliates.
Neither the Company nor any Affiliate of the Company may submit an Order in
any Auction, except that an Affiliate of the Company that is a Broker-Dealer may
submit an Order. The Company shall notify the Auction Agent if the Company or,
to the best of the Company's knowledge, any Affiliate of the Company becomes a
Beneficial Owner of any AMP Shares. The restrictions in this Section 2.6 shall
in no way limit the activities of the Auction Agent. The Auction Agent shall
have no duty or liability with respect to enforcement of this Section 2.6.
2.7 Access to and Maintenance of Auction Records.
The Auction Agent shall afford to the Company, its agents, independent
public accountants and counsel, at reasonable times during normal business
hours, to review and make extracts or copies of (at the Company's sole cost and
expense), access to all books, records, documents and other information
concerning the conduct and results of Auctions, provided that any such agent,
accountant or counsel shall furnish the Auction Agent with a letter from the
Company requesting that the Auction Agent afford such person access. The Auction
Agent shall maintain records relating to any Auction for a period of at least
six years after such Auction, and such records, in reasonable detail, shall
reflect accurately and fairly the actions taken by the Auction Agent hereunder.
The Company agrees to keep confidential any information regarding the customers
of any Broker-Dealer received from the Auction Agent in connection with this
Agreement or any Auction, and shall not disclose such information or permit the
disclosure of such information without the prior written consent of the
applicable Broker-Dealer to anyone except such agent, accountant or counsel
engaged to audit or review the results of Auctions as permitted by this Section
2.7. The Company reserves the right to disclose any such information if it is
ordered to do so by a court of competent jurisdiction or a regulatory body,
judicial or quasi-judicial agency or authority having authority to compel such
disclosure, or if it is advised by its counsel that its failure to do so would
be unlawful. Any such agent, accountant or counsel, before having access to such
information, shall agree to keep such information confidential and not to
disclose such information or permit disclosure of such information without the
prior written consent of the applicable Broker-Dealer, provided that such agent,
accountant or counsel may reserve the right to disclose any such information if
it is ordered to do so by a court of competent jurisdiction or a regulatory
body, judicial or quasi-judicial agency or authority having authority to compel
such disclosure, or if it is advised by its counsel that its failure to do so
would be unlawful.
2.8 Submission Processing Representation.
Broker-Dealers may submit an Order after the Submission Deadline and prior
to the Submission Processing Deadline if the Order was (i) received by the
Broker-Dealer from Existing Owners or Potential Owners prior to the Submission
Deadline or (ii) initiated internally by the Broker-Dealer for its own account
prior to the Submission Deadline. Each Order submitted to the Auction Agent
after the Submission Deadline and prior to the Submission Processing Deadline
shall constitute a representation by the Broker-Dealer that such Order was (i)
received from an Existing Owner or Potential Owner prior to the Submission
Deadline or (ii) initiated internally by the Broker-Dealer for its own account
prior to the Submission Deadline (the "Submission Processing Representation").
2.9 Information Concerning Rates.
If there is any change in the credit rating of AMP Shares by a rating
agency (or substitute or successor rating agencies) then rating the AMP Shares
that results in any change in the applicable percentage of the "AA" Composite
Commercial Paper Rate used to determine the Maximum Rate for AMP Shares (the
"Rate Multiple"), the Company shall notify the Auction Agent of such change in
the Rate Multiple prior to the Auction Date. In determining the Maximum Rate on
any Auction Date, the Auction Agent shall be entitled to rely on the last Rate
Multiple for AMP Shares of which it has most recently received notice from the
Company.
III. THE AUCTION AGENT AS PAYING AGENT.
3.1 The Paying Agent.
The Board of Directors of the Company has adopted resolutions appointing
Deutsche Bank Trust Company Americas as Auction Agent and Paying Agent. The
Paying Agent hereby accepts such appointment and agrees to act in accordance
with its standard procedures and the provisions of the Statement which are
specified herein with respect to the AMP Shares and as set forth in this Section
III.
3.2 The Company's Notices to the Paying Agent.
Whenever any AMP Shares are to be redeemed, the Company shall mail a Notice
of Redemption by first-class mail, postage prepaid, to each Holder of AMP Shares
being redeemed and to the Paying Agent pursuant to Section 3(b) of Part I of the
Statement.
3.3 The Company to Provide Funds for Dividends and Redemptions.
(a) Not later than 3:00 p.m. on the Business Day preceding each
Dividend Payment Date, the Company shall deposit with the Paying Agent an
aggregate amount of Federal funds or similar same-day funds equal to the
declared dividends to be paid to Holders on such Dividend Payment Date and
shall give the Paying Agent irrevocable instructions to apply such funds to
the payment of such dividends on such Dividend Payment Date.
(b) If the Company shall give a Notice of Redemption, then by 12:00
noon on the date fixed for redemption, the Company shall deposit in trust
with the Paying Agent an aggregate amount of Federal funds or similar
same-day funds sufficient to redeem such AMP Shares called for redemption
and shall give the Paying Agent irrevocable instructions and authority to
pay the redemption price to the Holders of AMP Shares called for redemption
upon surrender of the certificate or certificates therefor.
3.4 Disbursing Dividends and Redemption Price.
After receipt of the Federal Funds or similar same-day funds and
instructions from the Company described in Section 3.3 above, the Paying Agent
shall pay to the Holders (or former Holders) entitled thereto (i) on each
corresponding Dividend Payment Date, dividends on the AMP Shares, and (ii) on
any date fixed for redemption, the redemption price of any AMP Shares called for
redemption. The amount of dividends for any Dividend Period to be paid by the
Paying Agent to Holders will be determined by the Company as set forth in [Part
I, Section 2] of the Statement. The redemption price to be paid by the Paying
Agent to the Holders of any AMP Shares called for redemption will be determined
as set forth in [Part I, Section 3]of the Statement. The Paying Agent shall have
no duty to determine the redemption price and may rely conclusively on the
amount thereof set forth in the Notice of Redemption.
IV. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
4.1 Original Issue of AMP Share Certificates.
On the Date of Original Issue for any AMP Share, one certificate for AMP
Shares shall be issued by the Company and registered in the name of Cede & Co.,
as nominee of the Securities Depository, and countersigned by the Paying Agent.
4.2 Registration of Transfer or Exchange of AMP Shares.
Except as provided in this Section, the AMP Shares shall be registered
solely in the name of the Securities Depository or its nominee. If the
Securities Depository shall give notice of its intention to resign as such, and
if the Company shall not have selected a substitute Securities Depository
acceptable to the Paying Agent prior to such resignation, then, upon such
resignation of the Securities Depository, the AMP Shares, at the Company's
request and expense, may be registered for transfer or exchange, and new
certificates thereupon shall be issued in the name of the designated transferee
or transferees, upon surrender of the old certificate in form deemed by the
Paying Agent to be endorsed properly for transfer with (a) all necessary
endorsers' signatures guaranteed in such manner and form and by such guarantor
as the Paying Agent may reasonably require, (b) such assurances as the Paying
Agent shall deem necessary or appropriate to evidence the genuineness and
effectiveness of each necessary endorsement and (c) satisfactory evidence of
compliance with all applicable laws relating to the collection of taxes in
connection with any registration of transfer or exchange or funds necessary for
the payment of such taxes. If there is no Securities Depository, at the
Company's option and upon its receipt of such documents as it deems appropriate,
any AMP Shares may be registered in the Stock Register in the name of the
Beneficial Owner thereof, and such Beneficial Owner thereupon will be entitled
to receive certificates therefor and required to deliver certificates thereof
upon transfer or exchange thereof at the Company's expense.
4.3 Removal of Legend.
Any request for removal of a legend indicating a restriction on transfer
from a certificate evidencing AMP Shares shall be accompanied by an opinion of
counsel stating that such legend may be removed and such AMP Shares may be
transferred free of the restriction described in such legend, said opinion to be
delivered under cover of a letter from a Company Officer authorizing the Paying
Agent to remove the legend on the basis of said opinion.
4.4 Lost, Stolen or Destroyed AMP Share Certificates.
The Paying Agent shall, at the Holder's expense, issue and register
replacement certificates for certificates represented to have been lost, stolen
or destroyed, upon the fulfillment of such requirements as shall be deemed
appropriate by the Company and by the Paying Agent, subject at all times to
provisions of law, the Statement governing such matters and resolutions adopted
by the Company with respect to lost, stolen or destroyed securities. The Paying
Agent may issue new certificates in exchange for and upon the cancellation of
mutilated certificates. Any request by the Company to the Paying Agent to issue
a replacement or new certificate pursuant to this Section shall be deemed to be
a representation and warranty by the Company to the Paying Agent that such
issuance will comply with provisions of applicable law and the Statement and
resolutions of the Company.
4.5 Disposition of Canceled Certificates; Record Retention.
The Paying Agent shall retain share certificates which have been canceled
and any accompanying documentation thereto in accordance with applicable rules
and regulations of the Securities and Exchange Commission (the "Commission") for
at least six calendar years from the date of such cancellation. The Paying
Agent, upon written request by the Company, shall afford to the Company, its
agents and counsel access at reasonable times during normal business hours to
review and make extracts or copies (at the Company's sole cost and expense) of
such certificates and accompanying documentation. Upon the expiration of this
six-year period, the Paying Agent, upon written request by the Company, shall
deliver to the Company the canceled certificates and any accompanying
documentation. In the event that the Commission requests that any or all such
records be furnished to it, the Paying Agent shall provide the Company with
prompt written notice of such request so that the Company may appeal such
request and the Paying Agent shall cooperate with the Company in any such
appeal. In the event that such appeal is unsuccessful, the Paying Agent shall be
permitted to furnish to the Commission, either at its principal office or at any
regional office, complete, correct and current hard copies of any and all
records that were requested by the Commission provided that the Paying Agent
shall exercise reasonable efforts to obtain assurance that confidential
treatment will be accorded to such records. Thereafter, such records shall not
be destroyed by the Company without the approval of the Paying Agent, which
approval shall not be withheld unreasonably, but will be safely stored for
possible future reference.
4.6 Share Register.
The Paying Agent shall maintain the share register, which shall contain a
list of the Holders, the number of AMP Shares held by each Holder and the
address of each Holder. The Paying Agent shall record in the share register any
change of address of a Holder upon notice by such Holder. In case of any written
request or demand for the inspection of the share register or any other books of
the Company in the possession of the Paying Agent, the Paying Agent will notify
the Company and secure instructions as to permitting or refusing such
inspection. The Paying Agent reserves the right, however, to exhibit the share
register or other records to any person in case it is (a) ordered to do so by a
court of competent jurisdiction or a regulatory body, judicial or quasi-judicial
agency or authority having the authority to compel such disclosure or (b)
advised by its counsel that its failure to do so would be unlawful.
4.7 Return of Funds.
Any funds paid to the Paying Agent for the paying of dividends but not
applied to the payment of dividends, including interest earned on such moneys,
will, to the extent permitted by law, be repaid to the Company at the end of 90
days from the date on which such moneys were to have been so applied. Upon
written request, the Company shall be entitled to receive from the Paying Agent,
promptly after the date fixed for redemption, any cash deposited with the Paying
Agent in excess of (i) the aggregate redemption price of the AMP Shares called
for redemption on such date and (ii) such other amounts, if any, to which
Holders of AMP Shares called for redemption may be entitled. Any funds so
deposited that are unclaimed at the end of two years from such redemption date
shall, to the extent permitted by law, be paid to the Company upon its written
request. Funds, while deposited with the Auction Agent, will be held in trust
for the payment of the applicable dividend, redemption price or, as may be
applicable under the Statement, other charges.
V. REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties of the Company.
The Company represents and warrants to the Auction Agent that:
(i) the Company has been duly organized and is validly existing as a
corporation under the laws of the State of Maryland, and has full power to
execute and deliver this Agreement and to authorize, create and issue the
AMP Shares;
(ii) the Company is registered with the Commission under the 1940 Act
as a closed-end, non-diversified, management investment company;
(iii) this Agreement has been duly and validly authorized, executed
and delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights
and to general equitable principles;
(iv) the form of the certificate evidencing the AMP Shares complies
with all applicable state and federal laws;
(v) the AMP Shares have been duly and validly authorized by the
Company and, upon completion of the initial sale of the AMP Shares and
receipt of payment therefor, will be validly issued by the Company, fully
paid and nonassessable;
(vi) at the time of the offering of the AMP Shares, the AMP Shares
offered will be registered under the Securities Act and no further action
by or before any governmental body or authority of the United States or of
any state thereof is required in connection with the execution and delivery
of this Agreement or will be required in connection with the issuance of
the AMP Shares, except such action as required by applicable state
securities laws;
(vii) the execution and delivery of this Agreement and the issuance
and delivery of the AMP Shares do not and will not conflict with, violate
or result in a breach of the terms, conditions or provisions of, or
constitute a default under, the Articles of Incorporation or by-laws of the
Company, any order or decree of any court or public authority having
jurisdiction over the Company or any mortgage, indenture, contract,
agreement or undertaking to which the Company is a party or by which it is
bound the effect of which conflict, violation, breach or default would be
material to the Company; and
(viii) no taxes are payable upon or in respect of the execution of
this Agreement or will be payable upon or in respect of the issuance of the
AMP Shares.
5.2 Representations and Warranties of the Auction Agent.
The Auction Agent represents and warrants to the Company that:
(i) the Auction Agent is duly organized and is validly existing as a
banking corporation in good standing under the laws of the State of [New
York] and has the corporate power to enter into and perform its obligations
under this Agreement; and
(ii) this Agreement has been duly and validly authorized, executed and
delivered by the Auction Agent and constitutes the legal, valid and binding
obligation of the Auction Agent, enforceable against the Auction Agent in
accordance with its terms, subject only to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equitable principles.
VI. THE AUCTION AGENT.
6.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the Company hereunder
and owes no fiduciary duties to any Person.
(b) The Auction Agent undertakes to perform such duties and only such
duties as are set forth specifically 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 by it, 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.
6.2 Rights of the Auction Agent.
(a) The Auction Agent may rely conclusively upon, and shall be fully
protected in acting or refraining from acting in accordance with, any
communication authorized by this Agreement and any proper written instruction,
notice, request, direction, consent, report, certificate, share certificate or
other instrument, paper or document reasonably believed by it to be genuine and
appropriately authorized. The Auction Agent shall not be liable for acting upon
any telephone communication authorized by this Agreement which the Auction Agent
reasonably believes in good faith, after reasonable inquiry, to have been given
by the Company or by a Broker-Dealer. The Auction Agent may record telephone
communications with the Company or with the Broker-Dealers or with both.
(b) The Auction Agent may consult with counsel of its choice and the advice
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by the Auction Agent hereunder
in good faith and in reasonable 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. Unless otherwise instructed by the Company
in writing, the Auction Agent (i) shall not be obligated to invest any money
received by it hereunder and (ii) shall be under no liability for interest on
any money received by it 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 hereunder.
(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; acts of
terrorism; 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.
(f) The Auction Agent shall not be required to, and does not, make any
representations as to the validity, accuracy, value or genuineness of any
signatures or endorsements, other than its own and those of its authorized
officers.
(g) Any corporation into which the Auction Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Auction Agent shall be a party,
or any corporation succeeding to the Dealing and Trading business of the Auction
Agent shall be the successor of the Auction Agent hereunder, with the consent of
the Company but without the execution or filing of any paper with any party
hereto or any further act on the part of any of the parties hereto, except where
any instrument of transfer or assignment may be required by law to effect such
succession, anything herein to the contrary notwithstanding.
(h) All the rights, privileges, immunities and protections granted to the
Auction Agent herein are deemed granted to the Paying Agent and Deutsche Bank
Trust Company Americas in any of the capacities it undertakes in connection with
this Agreement.
(i) Whenever in the administration of the provisions of this Agreement, the
Auction Agent shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action to be taken hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Auction Agent, be deemed to be conclusively proved and established by a
certificate describing such action as requested by the Company or the Broker
Dealer, signed by the Company or the Broker Dealer, respectively, and delivered
to the Auction Agent and such certificate, in the absence of negligence or bad
faith on the part of the Auction Agent, shall be full warrant to the Auction
Agent for any action taken or omitted by it under the provisions of this
Agreement upon the faith thereof. Upon receipt of any such certificate signed by
the Company or the Broker-Dealer, the Auction Agent shall promptly provide a
copy of said certificate to the Broker-Dealer or the Company, respectively. The
Auction Agent shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, entitlement, order, approval or other paper or
document furnished by the Company or the Broker-Dealer, except to the extent
that such failure to investigate would be deemed negligent.
6.3 Compensation, Expenses and Indemnification.
(a) The Company shall pay to the Auction Agent from time to time reasonable
compensation for all services rendered by it under this Agreement and under the
Broker-Dealer Agreements as shall be set forth in a separate writing signed by
the Company and the Auction Agent, subject to adjustments if the AMP Shares no
longer are held of record by the Securities Depository or its nominee or if
there shall be such other change as shall increase or decrease materially the
Auction Agent's obligations hereunder or under the Broker-Dealer Agreements.
(b) The Company shall reimburse the Auction Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Auction
Agent in accordance with any provision of this Agreement and of the
Broker-Dealer Agreements (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any expense, disbursement or
advance attributable to the Auction Agent's negligence or bad faith, upon
submission to the Company of reasonable documentation thereof. In no event shall
the Auction Agent be responsible or liable for special, indirect or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit), even if the Auction Agent has been advised of the
likelihood of such loss or damage and regardless of the form of action.
(c) The Company shall indemnify the Auction Agent and its officers,
directors, employees and agents for, and hold them harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of the
Auction Agent arising out of or in connection with its agency under this
Agreement and under the Broker-Dealer Agreements, including the costs and
expenses of defending themselves against any claim of liability in connection
with their exercise or performance of any of their duties hereunder and
thereunder, except such as may result from its negligence or bad faith.
6.4 Auction Agent's Disclaimer.
The Auction Agent makes no representation as to the validity or adequacy of
the Agreement, the Broker Dealer Agreements or the AMP Shares except to the
extent otherwise set forth in Section 5.2 and except that the Auction Agent
hereby represents that the Agreement has been duly authorized, executed and
delivered by the Auction Agent and constitutes a legal and binding obligation of
the Auction Agent.
VII. MISCELLANEOUS.
7.1 Term of Agreement.
(a) The term of this Agreement is unlimited unless it shall be terminated
as provided in this Section 7.1. The Company may terminate this Agreement at any
time by so notifying the Auction Agent, provided that, if any AMP Shares remain
outstanding, the Company shall have entered into an agreement with a successor
auction agent. The Auction Agent may terminate this Agreement (i) upon prior
notice to the Company on the date specified in such notice, which date shall be
no earlier than 60 days after delivery of such notice or (ii) upon prior notice
to the Company on the date specified in such notice if the Company shall have
failed to pay the amounts due the Auction Agent in connection with its agency
under this Agreement and under the Broker-Dealer Agreements within 30 days of
invoice. If the Auction Agent terminates this Agreement while any AMP Shares
remain outstanding, the Company shall use its best efforts to enter into an
agreement with a successor auction agent containing substantially the same terms
and conditions as this Agreement.
(b) Except as otherwise provided in this Subsection (b), the respective
rights and duties of the Company and the Auction Agent under this Agreement
shall cease upon termination of this Agreement. The Company's representations,
warranties, covenants and obligations to the Auction Agent under Sections 5.1
and 6.3 hereof shall survive the termination hereof. The Auction Agent's
representations, warranties, covenants and obligations under Section 5.2 hereof
shall survive the termination hereof. Upon termination of this Agreement, the
Auction Agent shall (i) resign as Auction Agent under the Broker-Dealer
Agreements, (ii) at the Company's written request, deliver promptly to the
Company or to another authorized party copies of all books and records
maintained by it in connection with its duties hereunder, and (iii) at the
written request of the Company, transfer promptly to the Company or to any
successor auction agent any funds deposited by the Company with the Auction
Agent (whether in its capacity as Auction Agent or as Paying Agent) pursuant to
this Agreement which have not been distributed previously by the Auction Agent
in accordance with this Agreement.
7.2 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 Auctions (other than those expressly required to be in writing),
all notices, requests and other communications to any party hereunder shall be
in writing (including telecopy or similar writing) and shall be given to such
party at its address or telecopier number set forth below:
If to the Company,
addressed to:
Boulder Growth & Income Fund, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If to the Auction Agent, addressed to:
Deutsche Bank Trust Company Americas
Trust & Securities Services
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Auction Rate Securities
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 212-797-8600
or such other address or telecopier number as such party hereafter may specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Company by a Company Officer and
on behalf of the Auction Agent by an Authorized Officer.
7.3 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 implied,
between the parties relating to the subject matter hereof, except for written
agreements relating to the compensation of the Auction Agent.
7.4 Benefits.
Nothing herein, express or implied, shall give to any Person, other than
the Company, the Auction Agent and their respective successors and assigns, any
benefit of any legal or equitable right, remedy or claim hereunder.
7.5 Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
7.6 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
Company and the Auction Agent. This Agreement may not be assigned by either
party hereto absent the prior written consent of the other party, which consent
shall not be withheld unreasonably.
7.7 Severability.
If any clause, provision or section hereof shall be ruled invalid or
unenforceable by any court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
7.8 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.
7.9 Governing Law, Jurisdiction, Waiver of Trial By Jury.
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]). THE PARTIES AGREE HERETO THAT ALL ACTIONS AND
PROCEEDINGS ARISING OUT OF THIS AUCTION AGENCY AGREEMENT OR ANY TRANSACTIONS
CONTEMPLATED HEREBY SHALL BE BROUGHT IN THE COURTS LOCATED IN THE [BOROUGH OF
MANHATTAN, CITY OF NEW YORK, STATE OF NEW YORK].
EACH PARTY WAIVES ANY OBJECTION THAT IT MAY HAVE THAT SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN THE COURTS LOCATED IN THE [BOROUGH OF MANHATTAN, CITY OF
NEW YORK AND STATE OF NEW YORK] WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES
NOT TO PLEAD OR CLAIM THE SAME. EACH OF THE PARTIES HERETO ALSO IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7.10 Limitation of Liability. A copy of the Articles of Incorporation of
the Company is on file with the Secretary of State of the State of Maryland.
This Agreement has been executed on behalf of the Company by an officer of the
Company in such capacity and not individually and the obligations of the Company
under this Agreement are not binding upon such officer or the shareholders of
the Company individually but are binding only upon the assets and property of
the Company.
[Signature page follows]
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.
BOULDER GROWTH & INCOME FUND, INC.
By:---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:---------------------------------------------
Name:
Title:
By:---------------------------------------------
Name:
Title: