EXHIBIT k.4
NUVEEN BROKER-DEALER AGREEMENT
BASIC TERMS FOR ACTING AS A BROKER-DEALER
Relating to
FUNDNOTES
April ___, 2004
TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND RULES OF CONSTRUCTION............................................................. 1
1.1 Terms Defined by Reference to Indenture............................................... 1
1.2 Terms Defined Herein.................................................................. 1
1.3 Rules of Construction................................................................. 2
2. THE AUCTION....................................................................................... 3
2.1 Purposes; Incorporation by Reference of Auction Procedures and Settlement Procedures.. 3
2.2 Preparation of Each Auction........................................................... 3
2.3 Auction Schedule; Method of Submission of Order....................................... 5
2.4 Notices............................................................................... 6
2.5 Designation of Special Rate Period.................................................... 7
2.6 Service Charge to be Paid to BD....................................................... 7
2.7 Settlement............................................................................ 8
3. THE AUCTION AGENT................................................................................. 9
3.1 Duties and Responsibilities........................................................... 9
3.2 Rights of the Auction Agent........................................................... 10
3.3 Auction Agent's Disclaimer............................................................ 10
4. MISCELLANEOUS..................................................................................... 11
4.1 Termination........................................................................... 11
4.2 Participant in Securities Depository.................................................. 11
4.3 Payment of Interest in Same-Day Funds................................................. 11
4.4 Communications........................................................................ 11
4.5 Entire Agreement...................................................................... 11
4.6 Benefits.............................................................................. 12
4.7 Amendment; Waiver..................................................................... 12
4.8 Successors and Assigns................................................................ 12
4.9 Severability.......................................................................... 12
4.10 Execution in Counterparts............................................................. 12
4.11 Governing Law......................................................................... 12
4.12 Declaration of Trust.................................................................. 12
EXHIBITS
EXHIBIT A - Settlement Procedures
EXHIBIT B - FundNotes, Series__Order Form
EXHIBIT C - FundNotes, Series__Order Form
EXHIBIT D - Notice of a Failure to Deliver
EXHIBIT E - Form of Acceptance Letter
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These basic terms ("Basic Terms") set forth the general terms and
conditions pursuant to which a broker-dealer identified in a Acceptance Letter
(together with its successors and assigns, a "BD") will act as a Broker-Dealer
for FundNotes ("FundNotes") issued by investment companies, now or hereafter
organized, registered under the Investment Company Act of 1940, as amended (the
"Funds"), for which Nuveen Institutional Advisory Corp. (the "Adviser") is the
investment adviser.
Each Fund has issued or may issue FundNotes, pursuant to an Indenture
of Trust dated as of ______, 2004 between the Fund and the Bank of New York, as
Trustee (as the same may be amended or supplemented, the "Indenture"). A bank or
trust company specified in the Request Letter and Acceptance Letter will act as
the auction agent (the "Auction Agent") of such Fund pursuant to authority
granted it in the Auction Agency Agreement.
The Indenture will provide that, for each Rate Period of any series of
FundNotes of such Fund then outstanding, the Applicable Rate for such series for
such Rate Period shall, except under certain conditions, be the rate per annum
that the Auction Agent of such Fund advises results from implementation of the
Auction Procedures for such series. The Board of Trustees of each Fund will
adopt a resolution appointing the Auction Agent as auction agent for purposes of
the Auction Procedures for each series of FundNotes of such Fund.
The Auction Procedures of each Fund will require the participation of
one or more Broker-Dealers for each series of FundNotes of such Fund. BD will
act as a Broker-Dealer for each series of FundNotes of each Fund.
1. Definitions and Rules of Construction
1.1 Terms Defined by Reference to Indenture. Capitalized terms not
defined herein shall have the respective meanings specified in
the Indenture of the relevant Fund.
1.2 Terms Defined Herein. As used herein and in the Settlement
Procedures, the following terms shall have the following
meanings, unless the context otherwise requires:
(a) "Acceptance Letter" shall mean the letter from the
Fund, Adviser and Auction Agent to BD pursuant to
which the BD is appointed as a Broker-Dealer for each
series of FundNotes issued by any Fund that has
executed a Request Letter.
(b) "Agreement", with respect to any Fund, shall mean the
Basic Terms, together with the Acceptance Letter and
Request Letter relating to one or more series of
FundNotes of such Fund.
(c) "Auction" shall have the meaning specified in Section
2.1 hereof.
(d) "Auction Agency Agreement" shall mean the Auction
Agent Agreement between a Fund and the Auction Agent
relating to one or more series of FundNotes of such
Fund.
(e) "Auction Procedures" shall mean the auction
procedures constituting Appendix A of the Indenture.
(f) "Authorized Officer" shall mean each Vice President,
Assistant Vice President and Assistant Treasurer of
the Auction Agent assigned to the Dealing and Trading
Group of its Corporate Trust Division and every other
officer or employee of the Auction Agent designated
as an "Authorized Officer" for purposes of this
Agreement in a communication to the BD.
(g) "BD Officer" shall mean each officer or employee of
BD designated as a "BD Officer" for purposes of this
Agreement in a communication to the Auction Agent.
(h) "Broker-Dealer Agreement" shall mean this Agreement
and any substantially similar agreement between the
Auction Agent and a Broker-Dealer.
(i) "Existing Holder" shall have the meaning set forth in
the Statement, and for purposes of this Broker-Dealer
Agreement and with respect to the Auction Procedures
as referred to in this Agreement, shall also include,
as the circumstances may require, a Person who is
listed as the beneficial owner of FundNotes in the
records of a Broker-Dealer.
(j) "Potential Holder" shall have the meaning set forth
in the Statement, and for purposes of this
Broker-Dealer Agreement and with respect to the
Auction Procedures as referred to in this Agreement,
shall also include, as the circumstances may require,
any other Person, including any Existing Holder of
FundNotes, who may be interested in acquiring
FundNotes (or, in the case of an Existing Holder,
additional FundNotes).
(k) "Request Letter" with respect to any Fund, shall mean
the letter from such Fund to the Adviser and the
Auction Agent for such Fund pursuant to which such
Fund appoints BD as a Broker-Dealer for each series
of FundNotes of such Fund.
(l) "Settlement Procedures" shall mean the Settlement
Procedures attached hereto as Exhibit A.
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.
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(b) The captions and headings herein are solely for the
convenience of reference and shall not constitute a
part of this Agreement nor shall they affect its
meaning, construction or effect.
(c) The words "hereof", "herein", "hereto", and other
words of similar import refer to this Agreement as a
whole.
(d) All references herein to a particular time of day
shall be to New York City time.
2. The Auction
2.1 Purposes; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) The provisions of the Auction Procedures will be
followed by the Auction Agent for the purpose of
determining the Applicable Rate for any Rate Period
of any series of FundNotes for which the Applicable
Rate is to be determined by an Auction. Each periodic
operation of such procedures is hereinafter referred
to as an "Auction."
(b) All of the provisions contained in the Auction
Procedures and the Settlement Procedures are
incorporated herein by reference in their entirety
and shall be deemed to be a part hereof to the same
extent as if such provisions were fully set forth
herein.
(c) The BD agrees to act as, and assumes the obligations
of, and limitations and restrictions placed upon, a
Broker-Dealer under this Agreement for each series of
FundNotes. The BD understands that other Persons
meeting the requirements specified in the definition
of "Broker-Dealer" contained in the Auction
Procedures may execute Broker-Dealer Agreements and
participate as Broker-Dealers in Auctions.
2.2 Preparation of Each Auction.
(a) Not later than 9:30 A.M. on each Auction Date for any
series of FundNotes, the Auction Agent shall advise
the Broker-Dealers for such series by telephone of
the Minimum Rate and Maximum Rate therefor and the AA
Composite Commercial Paper Rate(s) and the Treasury
Index Rate(s), as the case may be, used in
determining the Minimum Rate and Maximum Rate.
(b) In the event that any Auction Date for any series of
FundNotes shall be changed after the Auction Agent
has given the notice referred to in clause (vi) of
paragraph (a) of the Settlement Procedures, or after
the notice referred to in Section 2.5(a) hereof, if
applicable, the Auction Agent, by such means as the
Auction Agent deems practicable shall give notice of
such change to the BD, if it is a Broker-Dealer for
such series, not later
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than the earlier of 9:15 A.M. on the new Auction Date
or 9:15 A.M. on the original Auction Date.
Thereafter, the BD shall notify customers of the BD
who the BD believes are Existing Holders of FundNotes
of such change in the Auction Date.
(c) For purposes of maintaining its list of Existing
Holders, the Auction Agent for any series of
FundNotes from time to time may request any
Broker-Dealer to provide such Auction Agent with a
list of Persons who such Broker-Dealer believes
should be Existing Holders based upon inquiries of
those Persons such Broker-Dealer believes are
Beneficial Owners as a result of the most recent
Auction and with respect to each such Person, the
principal amount of FundNotes of such series such
Broker-Dealer believes are owned by such Person. BD
shall comply with any such request relating to a
series of FundNotes in respect of which BD was named
a Broker-Dealer, and the Auction Agent shall keep
confidential any such information so provided by BD
and shall not disclose any information so provided by
BD to any Person other than the Fund and BD;
provided, however, that the Auction Agent reserves
the right and is authorized to disclose any such
information if (a) it is ordered to do so by a court
of competent jurisdiction or a regulatory body,
judicial or quasi-judicial agency or authority having
the authority to compel such disclosure, (b) it is
advised by its counsel that its failure to do so
would be unlawful or (c) failure to do so would
expose the Auction Agent to loss, liability, claim,
damage or expense for which it has not received
indemnity or security satisfactory to it.
(d) BD agrees to maintain a list of customers relating to
a series of FundNotes and to use its best efforts,
subject to existing laws and regulations, to contact
the customers on such list whom BD believes may be
interested in participating in the Auction on each
Auction Date, as a Potential Holder or a Potential
Beneficial Owner, for the purposes set forth in the
Auction Procedures. Nothing herein shall require BD
to submit an Order for any customer in any Auction.
(e) The Auction Agent's registry of Existing Holders of
FundNotes of a series shall be conclusive and binding
on BD. BD may inquire of the Auction Agent between
3:00 P.M. on the Business Day preceding an Auction
for a series of FundNotes and 9:30 A.M. on the
Auction Date for such Auction to ascertain the
principal amount of FundNotes of such series in
respect of which the Auction Agent has determined BD
to be an Existing Holder. If BD believes it is the
Existing Holder of fewer FundNotes of such series
than specified by the Auction Agent in response to
BD's inquiry, BD may so inform the Auction Agent of
that belief. BD shall not, in its capacity as
Existing Holder of FundNotes of such series, submit
Orders in such Auction in respect of FundNotes of
such series covering in the aggregate more than the
principal amount of FundNotes of such series
specified by the Auction Agent in response to BD's
inquiry.
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2.3 Auction Schedule; Method of Submission of Order.
(a) The Auction Agent shall conduct Auctions for
FundNotes in accordance with the schedule set forth
below. Such schedule with respect to any series of
FundNotes of the Fund may be changed by the Auction
Agent for such series with the consent of the Fund,
which consent shall not be unreasonably withheld. The
Auction Agent shall give written notice of any such
change to each Broker-Dealer of such series. Such
notice shall be given prior to the close of business
on the Business Day next preceding the first Auction
Date on which such change shall be effective.
Time Event
By 9:30 A.M. Auction Agent for such series advises the
Fund and the Broker-Dealers for such series
of the applicable Minimum Rate and Maximum
Rate and the Reference Rate(s) used in
determining such Minimum Rate and Maximum
Rate as set forth in Section 2.2(a) hereof.
9:30 A.M. - 12:30 P.M. Auction Agent assembles information
communicated to it by Broker-Dealers as
provided in Section 2(a) of the Auction
Procedures of the Fund. Submission Deadline
is 1:00 P.M.
Not earlier than 12:30 P.M. Auction Agent makes determinations pursuant
to Section 3(a) of the Auction Procedures.
By approximately 3:00 P.M. Auction Agent advises the Fund of results of
Auction as provided in Section 3(b) of the
Auction Procedures.
Submitted Bids and Submitted Sell Orders are
accepted and rejected and FundNotes of such
series allocated as provided in Section 4 of
the Auction Procedures.
Auction Agent gives notice of Auction
results as set forth in Section 2.4(a)
hereof.
(b) BD shall submit Orders to the appropriate Auction
Agent in writing substantially in the form attached
hereto as Exhibit B. BD shall submit a separate Order
to such Auction Agent for each Potential Holder or
Existing Holder with respect to whom BD is submitting
an Order and shall
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not otherwise net or aggregate such Orders prior to
their submission to such Auction Agent.
(c) BD shall deliver to the appropriate Auction Agent (i)
a written notice in substantially the form attached
hereto as Exhibit C of transfers of FundNotes to BD
from another Person other than pursuant to an Auction
and (ii) a written notice substantially in the form
attached hereto as Exhibit D, of the failure of any
FundNotes to be transferred to or by any Person that
purchased or sold FundNotes through BD pursuant to an
Auction. Such Auction Agent is not required to accept
any such notice described in clause (i) for an
Auction unless it is received by the Auction Agent by
3:00 P.M. on the Business Day preceding such Auction.
(d) BD and other Broker-Dealers may submit Orders in
Auctions for their own accounts (including Orders for
their own accounts where the Order is placed
beneficially for a customer) unless the relevant Fund
shall have notified BD and all other Broker-Dealers
that they may no longer do so, in which case
Broker-Dealers may continue to submit Hold Orders and
Sell Orders for their own accounts.
(e) BD agrees to handle its customers' orders in
accordance with its duties under applicable
securities laws and rules.
(f) To the extent that pursuant to Section 4 of the
Auction Procedures of any Fund, BD continues to hold,
sells, or purchases the principal amount of FundNotes
that is fewer than the principal amount of FundNotes
in an Order submitted by BD to the Auction Agent in
which BD designated itself as an Existing Holder or
Potential Holder in respect of customer Orders, BD
shall make appropriate pro rata allocations among its
customers for which it submitted Orders of similar
tenor. If as a result of such allocations, any
Beneficial Owner would be entitled or required to
sell, or any Potential Beneficial Owner would be
entitled or required to purchase, a fraction of a
FundNotes Share on any Auction Date, BD shall, in
such manner as it shall determine in its sole
discretion, round up or down the number of FundNotes
to be purchased or sold on such Auction Date by any
Beneficial Owner or Potential Beneficial Owner on
whose behalf BD submitted an Order so that the number
of FundNotes so purchased or sold by each such
Beneficial Owner or Potential Beneficial Owner on
such Auction Date shall be whole FundNotes.
2.4 Notices.
(a) On each Auction Date for any series of FundNotes, the
Auction Agent shall notify BD, if BD is a
Broker-Dealer of such series, by telephone of the
results of the Auction as set forth in paragraph (a)
of the Settlement Procedures. By approximately 11:30
a.m., on the Business Day next
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succeeding such Auction Date, the Auction Agent shall
confirm to BD in writing the disposition of all
Orders submitted by BD in such Auction.
(b) BD shall notify each Existing Holder, Potential
Holder, Beneficial Owner or Potential Beneficial
Owner on whose behalf BD has submitted an Order as
set forth in paragraph (a) of the Settlement
Procedures and take such other action as is required
of BD pursuant to the Settlement Procedures.
2.5 Designation of Special Rate Period.
(a) If any Fund delivers to the Auction Agent a notice of
the Auction Date for any series of FundNotes for a
Rate Period thereof that next succeeds a Rate Period
that is not a Standard Rate Period in the form of
Exhibit C to the Auction Agency Agreement, the
Auction Agent shall deliver such notice to BD as
promptly as practicable after its receipt of such
notice from such Fund.
(b) If the Board of Trustees proposes to designate any
succeeding Rate Period of any series of FundNotes as
a Special Rate Period and such Fund delivers to the
Auction Agent a notice of such proposed Special Rate
Period in the form of Exhibit D to the Auction Agency
Agreement, the Auction Agent shall deliver such
notice to BD as promptly as practicable after its
receipt of such notice from the Fund.
(c) If the Board of Trustees determines to designate such
succeeding Rate Period as a Special Rate Period and
such Fund delivers to the Auction Agent a notice of
such Rate Period in the form of Exhibit E to the
Auction Agency Agreement not later than 3:00 p.m. on
the second Business Day next preceding the first day
of such proposed Special Rate Period, the Auction
Agent shall deliver such notice to BD not later than
3:00 p.m. on such Business Day.
(d) If the Fund shall deliver to the Auction Agent a
notice not later than 3:00 p.m. on the second
Business Day next preceding the first day of any Rate
Period stating that the Fund has determined not to
exercise its option to designate such succeeding Rate
Period as a Special Rate Period, in the form of
Exhibit F to the Auction Agent Agreement, or shall
fail to timely deliver either such notice or a notice
in the form of Exhibit E to the Auction Agency
Agreement, the Auction Agent shall deliver a notice
in the form of Exhibit F to the Auction Agency
Agreement to BD not later than 3:00 p.m. on such
Business Day.
2.6 Service Charge to be Paid to BD.
On the Business Day next succeeding each Auction Date for any
series of FundNotes of any Fund specified in the Request Letter of any Fund, the
Auction Agent for such series shall pay to BD from moneys received from such
Fund an amount equal to the product of (a) (i) in the case of any Auction Date
immediately preceding a Rate Period of such series
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consisting of 364 Rate Period Days or fewer, 1/4 of 1%, or (ii) in the case of
any Auction Date immediately preceding a Rate Period of such series consisting
of more than 364 Rate Period Days, such percentage as may be agreed upon by such
Fund and BD with respect to such Rate Period, times (b) a fraction, the
numerator of which is the number of Rate Period Days in the Rate Period therefor
beginning on such Business Day and the denominator of which is 365 if such Rate
Period consists of 7 Rate Period Days and 360 for all other Rate Periods, times
(c) $25,000 times (d) the sum of (i) the aggregate principal amount of FundNotes
of such series placed by BD in such Auction that were (A) the subject of
Submitted Bids of Existing Holders submitted by BD and continued to be held as a
result of such submission and (B) the subject of Submitted Bids of Potential
Holders submitted by BD and purchased as a result of such submission plus (ii)
the aggregate principal amount of FundNotes of such series subject to valid Hold
Orders (determined in accordance with paragraph (d) of Section 2 of the Auction
Procedures) submitted to the Auction Agent by BD plus (iii) the principal amount
of FundNotes deemed to be subject to Hold Orders of Existing Holders pursuant to
paragraph (c) of Section 2 of the Auction Procedures of such Fund that were
acquired by BD for its own account or were acquired by BD for its customers who
are Beneficial Owners.
For purposes of subclause (d)(iii) of the foregoing paragraph,
if any Existing Holder or Beneficial Owner who acquired FundNotes of any series
of FundNotes through BD transfers those FundNotes to another Person other than
pursuant to an Auction, then the Broker-Dealer for the FundNotes so transferred
shall continue to be BD; provided, however, that if the transfer was effected
by, or if the transferee is, a Broker-Dealer other than BD, then such
Broker-Dealer shall be the Broker-Dealer for such FundNotes.
2.7 Settlement.
(a) If any Existing Holder or Beneficial Owner with
respect to whom BD has submitted a Bid or Sell Order
for FundNotes of any series that was accepted in
whole or in part fails to instruct its Agent Member
to deliver the FundNotes subject to such Bid or Sell
Order against payment therefor, BD, if it knows the
identity of such Agent Member, shall instruct such
Agent Member to deliver such FundNotes against
payment therefor and, if such Agent Member fails to
comply with such instructions, BD may deliver to the
Potential Holder or Potential Beneficial Owner with
respect to whom BD submitted a Bid for FundNotes of
such series that was accepted in whole or in part the
principal amount of FundNotes of such series that is
less than the principal amount of FundNotes of such
series specified in such Bid to be purchased by such
Potential Holder or Potential Beneficial Owner.
(b) Neither the Auction Agent nor the Fund shall have any
responsibility or liability with respect to the
failure of an Existing Holder, Beneficial Owner,
Potential Holder or Potential Beneficial Owner or its
respective Agent Member to deliver FundNotes of any
series or to pay for FundNotes of any series sold or
purchased pursuant to the Auction Procedures or
otherwise.
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(c) Notwithstanding any provision of the Auction
Procedures or the Settlement Procedures to the
contrary, in the event BD is an Existing Holder with
respect to FundNotes of a series and the Auction
Procedures provide that BD shall be deemed to have
submitted a Sell Order in an Auction with respect to
such FundNotes if BD fails to submit an Order in that
Auction with respect to such FundNotes, BD shall have
no liability to any Person for failing to sell such
FundNotes pursuant to such a deemed Sell Order if (i)
such FundNotes were transferred by the beneficial
owner thereof without notification of such transfer
in compliance with the Auction Procedures or (ii) BD
has indicated to the Auction Agent pursuant to
Section 2.2(e) of this Agreement that, according BD's
records, BD is not the Existing Holder of such
FundNotes.
(d) Notwithstanding any provision of the Auction
Procedures or the Settlement Procedures to the
contrary, in the event an Existing Holder or
Beneficial Owner of FundNotes of a series with
respect to whom a Broker-Dealer submitted a Bid to
the Auction Agent for such FundNotes that was
accepted in whole or in part, or submitted or is
deemed to have submitted a Sell Order for such
FundNotes that was accepted in whole or in part,
fails to instruct its Agent Member to deliver such
FundNotes against payment therefor, partial
deliveries of FundNotes that have been made in
respect of Potential Holders, or Potential Beneficial
Owners' Submitted Bids for FundNotes of such series
that have been accepted in whole or in part shall
constitute good delivery to such Potential Holders
and Potential Beneficial Owners.
(e) Notwithstanding the foregoing terms of this Section,
any delivery or non-delivery of FundNotes of any
series which represents any departure from the
results of an Auction for FundNotes of such series,
as determined by the Auction Agent, shall be of no
effect for purposes of the registry of Existing
Holders maintained by the Auction Agent pursuant to
the Auction Agency Agreement unless and until the
Auction Agent shall have been notified of such
delivery or non-delivery.
(f) The Auction Agent shall have no duty or liability
with respect to enforcement of this Section 2.7.
3. The Auction Agent
3.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the
Funds with whom such Auction Agent has entered into
Request Letters hereunder and owes no duties,
fiduciary or otherwise, to any other Person.
(b) The Auction Agent undertakes to perform such duties
and only such duties as are specifically set forth in
such agreements to which it is a party, and
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no implied covenants or obligations shall be read
into the agreements against the Auction Agent.
(c) In the absence of willful misconduct 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 agreements. 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 the pertinent facts.
3.2 Rights of the Auction Agent.
(a) The Auction Agent may conclusively rely and shall be
protected in acting or refraining from acting upon
any communication authorized hereby and upon any
written instruction, notice, request, direction,
consent, report, certificate, share certificate or
other instrument, paper or document believed in good
faith by it to be genuine. The Auction Agent shall
not be liable for acting upon any telephone
communication authorized by this Agreement which the
Auction Agent believes in good faith to have been
given by the Fund or by a Broker-Dealer. The Auction
Agent may record telephone communications with the
Broker-Dealers.
(b) The Auction Agent may consult with counsel of its
choice and the advice of such counsel shall be full
and complete authorization and protection in respect
of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance,
expend or risk its own funds or otherwise incur or
become exposed to financial liability in the
performance of its duties hereunder.
(d) The Auction Agent shall not be responsible or liable
for any failure or delay in the performance of its
obligations under this agreement arising out of or
caused, directly or indirectly, by circumstances
beyond its reasonable control, including, without
limitation, acts of God; earthquakes; fires, floods;
wars; civil or military disturbances; sabotage; acts
of terrorism; epidemics; riots; interruptions, loss
or malfunctions of utilities; computer (hardware or
software) or communications services; accidents;
labor disputes; acts of civil or military authority
or governmental actions; it being understood that the
Auction Agent shall use reasonable efforts which are
consistent with accepted practices in the banking
industry to resume performance as soon as practicable
under the circumstances.
3.3 Auction Agent's Disclaimer. The Auction Agent makes no
representation as to the validity or adequacy of this
Agreement, the Auction Agency Agreement or the FundNotes of
any series.
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4. Miscellaneous
4.1 Termination. Any party to this Agreement may terminate the
Agreement at any time on five days' notice to the other
parties to such Agreement, provided that the Fund party to the
Agreement shall not terminate the Agreement unless at least
one Broker-Dealer Agreement would be in effect for each series
of FundNotes of the Fund after such termination. Each
Agreement shall automatically terminate with respect to any
series of FundNotes with respect to which the Auction Agency
Agreement has terminated.
4.2 Participant in Securities Depository. BD is, and shall remain
for the term of this Agreement, a member of, or participant
in, the Securities Depository (or an affiliate of such a
member participant).
4.3 Payment of Interest in Same-Day Funds. BD represents that it
(or if BD does not act as Agent Member, one of its affiliates)
shall make all interest payments on the FundNotes available in
same-day funds on each Interest Payment Date to customers that
use BD or affiliate as Agent Member.
4.4 Communications. Except (i) communications authorized to be by
telephone by this Agreement or the Auction Procedures and (ii)
communications in connection with Auctions (other than those
expressly required to be in writing), all notices, requests
and other communications to any party hereunder shall be in
writing (including telecopy or similar writing) and shall be
given to such party, addressed to it, at its addressed or
telecopy number set forth below:
If to BD, to the address or telecopy number as set forth in the
Acceptance Letter.
If to the Auction Agent, to the address or telecopy number as set forth
in the Request Letter.
If to the Fund, addressed:
[Name of Fund]
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or telecopy number as such party may hereafter specify for
such purpose by notice to the other parties. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of BD by a BD Officer and on behalf of
the Auction Agent by an Authorized Officer. BD may record telephone
communications with the Auction Agent.
4.5 Entire Agreement. This Agreement contains the entire agreement
among the parties hereto relating to the subject matter
hereof, and there are no other representations, endorsements,
promises, agreements or understandings, oral,
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written or implied, among the parties hereto relating to the
subject matter hereof. This Agreement supersedes and
terminates all prior Broker-Dealer Agreements between the
parties.
4.6 Benefits. Nothing in this Agreement, express or implied, shall
give to any person, other than the Fund, the Auction Agent, BD
and their respective successors and assigns, any benefit of
any legal or equitable right, remedy or claim hereunder.
4.7 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 any party hereto to exercise any right or
remedy hereunder in the event of a breach hereof by
any other party shall not constitute a waiver of any
such right or remedy with respect to any subsequent
breach.
4.8 Successors and Assigns. This Agreement shall be binding upon,
inure to the benefit of, and be enforceable by, the respective
successors and assigns of each of the Auction Agent and BD.
This Agreement may not be assigned by either party hereto
absent the prior written consent of the other party; provided,
however, that this Agreement may be assigned by the Auction
Agent to a successor Auction Agent selected by the Fund
without the consent of BD.
4.9 Severability. If any clause, provision or section hereof shall
be ruled invalid or unenforceable by any court of competent
jurisdiction, the invalidity or unenforceability of such
clause, provision or section shall not affect any of the
remaining clauses, provisions or sections thereof.
4.10 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.
4.12 Declaration of Trust. The Declaration of the Fund is on file
with the Secretary of State of the Commonwealth of
Massachusetts. This Agreement to which the Fund is a party has
been executed on behalf of the Fund by the Vice President and
Treasurer of such Fund acting in such capacity and not
individually, and the obligations of the Fund set forth in
this Agreement are not binding upon any of such Fund's
trustees, officers or shareholders individually, but are
binding only upon the assets and property of the Fund.
12
EXHIBIT A
SETTLEMENT PROCEDURES
A-1
EXHIBIT B
[NAME OF FUND]
$_____ FundNotes
Series ____
AUCTION DATE: _____________
ISSUE: ___________________ SERIES: _________
THE UNDERSIGNED Broker-Dealer SUBMITS THE FOLLOWING ORDERS
ON BEHALF OF THE BIDDER(S) LISTED BELOW: ORDERS BY POTENTIAL HOLDERS- PRINCIPAL AMOUNT OF FUNDNOTES
ORDERS BY EXISTING HOLDERS- PRINCIPAL AMOUNT OF FUNDNOTES POTENTIAL HOLDER BID/RATE
--------------------------- ----------------------------- ---------------- --------
EXISTING HOLDER HOLD BID/RATE SELL 1. /
--------- ------------------------
1. / 2. /
--------- ---- -------- ---- --------- ------------------------
2. / 3. /
--------- ---- -------- ---- --------- ------------------------
3. / 4. /
--------- ---- -------- ---- --------- ------------------------
4. / 5. /
--------- ---- -------- ---- --------- ------------------------
5. / 6. /
--------- ---- -------- ---- --------- ------------------------
6. / 7. /
--------- ---- -------- ---- --------- ------------------------
7. / 8. /
--------- ---- -------- ---- --------- ------------------------
8. / 9. /
--------- ---- -------- ---- --------- ------------------------
9. / 10. /
--------- ---- -------- ---- -------- ------------------------
10. / 11. /
-------- ---- -------- ---- -------- ------------------------
12. /
-------- ------------------------
13. /
-------- ------------------------
14. /
-------- ------------------------
15. /
-------- ------------------------
NOTES:
1. If one or more Orders covering in the aggregate more than the aggregate
principal amount of outstanding FundNotes held by any Existing holder
are submitted, such Orders shall be considered valid in the order of
priority set forth in the Auction Procedures.
2. A Hold Order or Sell Order may be placed only by an Existing Holder
covering a number of FundNotes not greater than the principal amount of
FundNotes currently held by such Existing Holder.
3. Potential Holders may make Bids only, each of which must specify a
rate. If more than one Bid is submitted on behalf of any Potential
Holder, each Bid submitted shall be a separate Bid with the rate
specified.
4. Bids may contain no more than three figures to the right of the decimal
point (.001 of 1%).
B-1
[AUCTION AGENT] AUCTION BID FORM NAME OF Broker-Dealer:
AUTHORIZED
Submit to: SIGNATURE:
TOTAL NUMBER OF ORDERS ON THIS
BID FORM: ____________________
B-2
EXHIBIT C
(To be used only for transfers made
other than pursuant to in Auction)
[NAME OF FUND]
FUNDNOTES,
SERIES____
TRANSFER FORM
We are (check one):
The Existing Holder named below;
____________
The Broker-Dealer for such Existing Holding; or
____________
The Agent Member for such Existing Holder.
____________
We hereby notify you that such Existing Holder has transferred $_____ of
FundNotes of the above series of FundNotes to __________________________.
______________________________
(Name of Existing Holder)
______________________________
(Name of Broker-Dealer)
______________________________
(Name of Agent Member)
By:___________________________
Printed Name:
C-1
EXHIBIT D
(To be used only for failures to
deliver FundNotes
sold pursuant to an Auction)
[NAME OF FUND]
FUNDNOTES, SERIES____
NOTICE OF A FAILURE TO DELIVER
Complete either I or II
I. We are a Broker-Dealer for _______________ (the "Purchaser"), which
purchased $____ of the above series of FundNotes in the Auction held on
_______________ from the seller of such FundNotes.
II. We are a Broker-Dealer for ________________ (the "Seller"), which sold
$_____ of the above series of FundNotes in the Auction held on
_______________ to the purchaser of such shares.
We hereby notify you that (check one) --
- the Seller failed to deliver such FundNotes to the Purchaser
- the Purchaser failed to make payment to the Seller upon
delivery of such FundNotes
Name:_________________________
(Name of Broker-Dealer)
By:___________________________
Printed Name:
Title:
D-1
EXHIBIT E
[Form of Broker-Dealer Acceptance Letter]
Nuveen Institutional Advisory Corp.
, 20___
[Broker-Dealer]
[Address]
Ladies and Gentlemen:
Reference is made to the Nuveen Broker-Dealer Agreement-Basic Terms for
Acting as a Broker-Dealer Relating to FundNotes dated __________, 2004, receipt
of which is hereby acknowledged by you (the "Basic Terms"). For purposes of this
letter ("Request and Acceptance Letter") (a) "Fund" shall mean any closed-end
investment company registered under the Investment Company Act of 1940, as
amended, for which Nuveen Institutional Advisory Corp. acts as investment
adviser; (b) except as otherwise provided below, the Basic Terms are
incorporated herein by reference, you shall be considered BD for all purposes
thereof, The Bank of New York shall be considered the Auction Agent for all
purposes thereof, and each Fund shall be considered a Fund for all purposes
thereof.
We hereby request that you act as a Broker-Dealer for the FundNotes
("FundNotes") of each series, of each Fund that executes a letter, substantially
in the form attached hereto as Exhibit A or Exhibit B, as appropriate,
appointing you as a Broker-Dealer ("Request Letter"). You hereby (a) accept such
appointment as a Broker-Dealer for each series of FundNotes of each Fund
identified in a Request Letter and (b) agree to act as BD in accordance with the
Basic Terms; provided, however, that:
(1) for purposes of the Basic Terms, and notwithstanding any
provision to the contrary, your address, telecopy number and telephone number
for communications pursuant to the Basic Terms shall be as follows:
and the address, telecopy number and telephone number of the Auction Agent for
communications pursuant to the Basic Terms shall be as follows:
E-1
(2) notwithstanding any provisions of the Basic Terms to the
contrary, except as otherwise set forth herein, your appointment as
Broker-Dealer extends to each series of FundNotes issued by a Fund.
You hereby acknowledge that, notwithstanding any provision of the Basic
Terms to the contrary, the Fund may (a) upon five business days' notice to the
Auction Agent and you, amend, alter or repeal any of the provisions contained in
the Basic Terms, it being understood and agreed that you shall be deemed to have
accepted any such amendment, alteration or repeal if, after the expiration of
such five business day period, you submit an Order to the Auction Agent in
respect of the FundNotes of a Fund or Funds to which such amendment, alteration
or repeal relates, and (b) upon two business days' notice to the Auction Agent
and you, exclude you from participating as a Broker-Dealer in any particular
Auction for any particular series of FundNotes.
This Acceptance Letter shall be deemed to form part of the Basic Terms.
Capitalized Terms not defined in this Request and Acceptance Letter
shall have the meanings ascribed to them in the Basic Terms.
[Signature Page Follows]
E-2
If the foregoing terms are acceptable to you, please so indicate in the
space provided below. This Acceptance Letter may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
NUVEEN INSTITUTIONAL ADVISORY
CORP.
By:___________________________
Name:
Title:
THE BANK OF NEW YORK
By:___________________________
Name:
Title:
Accepted by and Agreed to as of
the date first written above:
[Broker-Dealer]
By:____________________________
Name:
Title:
E-3
EXHIBIT A TO ACCEPTANCE LETTER
[Form of Request Letter]
________________, _____
FROM: All investment companies registered under the Investment Company Act of
1940, as amended, for which Nuveen Institutional Advisory Corp. acts as
investment adviser and whose registration statements relating to
FundNotes have been declared effective by the Securities and Exchange
Commission on or prior to the date hereof.
TO: Nuveen Institutional Advisory Corp.
The Bank of New York
Ladies and Gentlemen:
Reference is made to (a) the Nuveen Broker-Dealer Agreement -- Basic
Terms for Acting as a Broker-Dealer dated ____________ __, 2004, receipt of
which is hereby acknowledged by you (the "Broker-Dealer Basic Terms"); and (b)
the Nuveen Auction Agency Agreement -- Basic Terms for Acting as Auction Agent
dated ____________ __, 2004, receipt of which is hereby acknowledged by you (the
"Auction Agency Basic Terms"). For purposes of this letter ("Request Letter"),
(a) "Fund" shall mean any closed-end investment company registered under the
Investment Company Act of 1940, as amended, for which Nuveen Institutional
Advisory Corp. acts as investment adviser; (b) the Broker-Dealer Basic Terms are
incorporated herein by reference, each Broker-Dealer listed on Exhibit A hereto
shall be considered BD for all purposes thereof, The Bank of New York shall be
considered the Auction Agent for all purposes thereof, and each Fund referred to
on Exhibit B hereto shall be considered a Fund for all purposes thereof; (c) the
Auction Agency Basic Terms are incorporated herein by reference, The Bank of New
York shall be considered the Auction Agent for all purposes thereof, and each
Fund referred to on Exhibit B hereto shall be considered a Fund for all purposes
thereof.
We hereby appoint the Broker-Dealers listed on Exhibit A hereto as
Broker-Dealers for the FundNotes ("FundNotes") of each series of each Fund
referred to on Exhibit B hereto. Each such Broker-Dealer will act as BD in
respect of such series in accordance with the Broker-Dealer Basic Terms;
provided, however, that for purposes of any such Broker-Dealer Agreement or the
Broker-Dealer Basic Terms, and notwithstanding any provision of any
Broker-Dealer Agreement to the contrary, The Bank of New York's address,
telecopy number and telephone number for communications pursuant to such
Broker-Dealer Agreement or the Broker-Dealer Basic Terms shall be as follows:
A-1
___________________________________
___________________________________
___________________________________
___________________________________
The Bank of New York agrees to act as Auction Agent with respect to
FundNotes of each series of each Fund referred to on Exhibit B hereto in
accordance with the Auction Agency Basic Terms.
This Request Letter shall be deemed to form part of the Auction Agency
Basic Terms.
Capitalized terms not defined in this Request Letter shall have the
meanings ascribed to them in the relevant Broker-Dealer Basic Terms or Auction
Agency Basic Terms, as the case may be.
[Signature Page Follows]
A-2
If the foregoing terms are acceptable to you, please so indicate in the
space provided below. This Request Letter may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
All investment companies
registered under the
Investment Company Act of
1940, as amended, for which
Nuveen Institutional Advisory
Corp. acts as investment
adviser and whose registration
statements relating to
FundNotes have been declared
effective by the Securities
and Exchange Commission on or
prior to the date hereof.
By:___________________________
Name:
Title:
Accepted and Agreed to as of the date first
written above:
NUVEEN INSTITUTIONAL ADVISORY CORP. THE BANK OF NEW YORK
By:_______________________________ By:___________________________
Name: Name:
Title: Title:
cc: [Broker-Dealers]
A-3
EXHIBIT A TO REQUEST LETTER
[LIST OF BROKER-DEALERS]
A-1
EXHIBIT B TO REQUEST LETTER
Each Fund whose registration statement relating to FundNotes has been
declared effective by the Securities and Exchange Commission on or prior to the
date of the Request Letter to which this Exhibit B is attached.
B-1
EXHIBIT B TO ACCEPTANCE LETTER
[Form of Request Letter]
[Name(s) of Fund(s)]
______________, _____
Ladies and Gentlemen:
Reference is made to (a) the Nuveen Broker-Dealer Agreement -- Basic
Terms for Acting as a Broker-Dealer dated ____________ __, 2004, receipt of
which is hereby acknowledged by you (the "Broker-Dealer Basic Terms") and (b)
the Nuveen Auction Agency Agreement -- Basic Terms for Acting as Auction Agent
dated ____________ __, 2004, receipt of which is hereby acknowledged by you (the
"Auction Agency Basic Terms"). For purposes of this letter ("Request Letter"),
(a) "Fund" shall mean each undersigned closed-end investment company registered
under the Investment Company Act of 1940, as amended, for which Nuveen
Institutional Advisory Corp. acts as investment adviser; (b) the Broker-Dealer
Basic Terms are incorporated herein by reference, each Broker-Dealer listed on
Exhibit A hereto shall be considered Broker-Dealer for all purposes thereof, The
Bank of New York shall be considered the Auction Agent for all purposes thereof,
and each Fund shall be considered a Fund for all purposes thereof; and (c) the
Auction Agency Basic Terms are incorporated herein by reference, The Bank of New
York shall be considered the Auction Agent for all purposes thereof, and each
Fund shall be considered a Fund for all purposes thereof.
Each Fund hereby appoints the Broker-Dealers listed on Exhibit A hereto
as Broker-Dealers for each series of FundNotes ("FundNotes") of such Fund. Each
such Broker-Dealer will act as Broker-Dealer in respect of each such series in
accordance with the Broker-Dealer Basic Terms; provided, however, that for
purposes of the Broker-Dealer Basic Terms, The Bank of New York's address,
telecopy number and telephone number for communications pursuant to the
Broker-Dealer Basic Terms shall be as follows:
___________________________________
___________________________________
___________________________________
___________________________________
The Bank of New York agrees to act as Auction Agent with respect to
FundNotes of each series of each Fund in accordance with the Auction Agency
Basic Terms.
This Request Letter shall be deemed to form part of the Auction Agency
Basic Terms.
B-1
Capitalized terms not defined in this Request Letter shall have the
meanings ascribed to them in the Broker-Dealer Basic Terms or Auction Agency
Basic Terms, as the case may be.
If the foregoing terms are acceptable to you, please so indicate in the
space provided below. This Request Letter may be executed in any number of
counterparts, each of which shall be an original, but all of which shall
constitute one and the same instrument.
[NAME(S) OF FUND(S)]
By:___________________________
Name:
Title:
Accepted and Agreed to as of the date first
written above:
NUVEEN INSTITUTIONAL ADVISORY CORP. THE BANK OF NEW YORK
By:___________________________ By:___________________________
Name: Name:
Title: Title:
cc: [Broker-Dealers listed on Exhibit A]
B-2
EXHIBIT A TO REQUEST LETTER
[LIST OF BROKER-DEALERS]
A-1