EXHIBIT (k)(6)
PIONEER FLOATING RATE TRUST
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AUCTION AGENCY AGREEMENT
dated as of [ ], 2005
Relating to
Auction Market Preferred Shares
Series M7, Series W7 and Series TH7
of
PIONEER FLOATING RATE TRUST
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
AUCTION AGENCY AGREEMENT
This Auction Agency Agreement (this "Agreement"), dated as of [ ],
2005, is by and between Pioneer Floating Rate Trust, a Delaware statutory trust
(the "Trust"), and Deutsche Bank Trust Company Americas, a New York
banking corporation.
The Trust proposes to issue an aggregate of [ ] of its Auction
Market Preferred Shares, Series M7, Series W7 and Series TH7, each with a par
value of $.0001 per share and a liquidation preference of $25,000 per share
(collectively, the "AMPS"), pursuant to the Statement (as defined below).
The Trust desires that Deutsche Bank Trust Company Americas perform
certain duties as agent in connection with each Auction (as defined below) (in
such capacity, the "Auction Agent"), and as the transfer agent, registrar,
dividend paying agent and redemption agent with respect to the AMPS (in such
capacity, the "Paying Agent"), upon the terms and conditions of this Agreement,
and the Trust hereby appoints Deutsche Bank Trust Company Americas as said
Auction Agent.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Trust and the Auction Agent agree as follows:
1. Definitions and Rules of Construction.
1.1 Terms Defined By Reference to Statement.
Capitalized terms used herein but not defined herein shall have the
respective meanings specified in the Statement.
1.2 Terms Defined Herein.
As used herein and in the Settlement Procedures, the following terms shall
have the following meanings, unless the context otherwise requires:
(a) "Agent Member" of any Person shall mean the member of, or
participant in, the Securities Depository that will act on behalf of a Bidder.
(b) "Auction" shall have the meaning specified in Section 2.1
hereof.
(c) "Auction Procedures" shall mean the auction procedures
constituting Part II of the form of Statement.
(d) "Authorized Officer" of the Auction Agent shall mean each Vice
President, Assistant Vice President, and Associate of the Auction Agent assigned
to its Corporate Trust and Agency Group and every other officer or employee of
the Auction Agent designated as an "Authorized Officer" for purposes hereof in a
communication to the Trust.
(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) "Settlement Procedures" shall mean the Settlement Procedures
attached hereto as Exhibit B.
(g) "Statement" shall mean the Statement of Preferences of Auction
Market Preferred Shares, as the same may be amended, supplemented or modified
from time to time.
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(h) "Trust Officer" shall mean the Chairman, the President, each
Vice President (whether or not designated by a number or word or words added
before or after the title "Vice President"), the Secretary, the Treasurer, each
Assistant Vice President, each Assistant Secretary and each Assistant Treasurer
of the Trust and every other officer or employee of the Trust designated as a
"Trust Officer" for purposes hereof in a notice to the Auction Agent.
1.3 Rules of Construction.
Unless the context or use indicates another or different meaning or
intent, the following rules shall apply to the construction of the 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 the Agreement nor shall they affect
its meaning, construction or effect.
(c) the words "hereof", "herein", "hereto" and other words of
similar import refer to the 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 Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) The Board of Trustees of the Trust 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 the procedures set forth in
this Section 2 and the Auction Procedures for the purpose of determining the
Applicable Rate for any Subsequent Dividend Period of any series of AMPS for
which the Applicable Rate is to be determined by 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.
2.2 Preparation for Each Auction; Maintenance of Registry of Beneficial
Owners.
(a) As of the date hereof, the Trust shall provide the Auction Agent
with a list of the Broker-Dealers. Not later than five days prior to any Auction
Date for any series of AMPS for which any change in such list of Broker-Dealers
is to be effective, the Trust will notify the Auction Agent in writing of such
change and, if any such change involves the addition of a Broker-Dealer to such
list, shall cause to be delivered to the Auction Agent for execution by the
Auction Agent a Broker-Dealer Agreement signed by such Broker-Dealer; provided,
however, that if the Trust proposes to designate any Special Dividend Period of
any series of AMPS pursuant to Section 3 of Part I of the Statement, not later
than 11:00 A.M. on the Business Day next preceding the Auction next preceding
the first day of such Rate Period or by such later time or date, or both, as may
be agreed to by the Auction Agent, the Trust shall provide the Auction Agent
with a list of the Broker-Dealers for such series and a manually signed copy of
each Broker-Dealer Agreement or a new Schedule A to a Broker-Dealer Agreement
(which Schedule A shall replace and supersede any previous Schedule A to such
Broker-Dealer Agreement) with each
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Broker-Dealer for such series. 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 any Auction Date for any series of AMPS shall
be changed after the Auction Agent shall have given the notice referred to in
paragraph (a) of the Settlement Procedures, or after the notice referred to in
Section 2.3 hereof, if applicable, the Auction Agent, by such means as the
Auction Agent deems practicable, shall give notice of such change to the
Broker-Dealers for such series 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) (i) The Auction Agent shall maintain a registry of the
beneficial owners of the AMPS of each series who shall constitute Existing
Holders of AMPS of such series for purposes of Auctions. The Auction Agent shall
indicate thereon the identity of the respective Broker-Dealer of each Existing
Holder on whose behalf such Broker-Dealer submitted the most recent Order in any
Auction which resulted in such Existing Holder continuing to hold or purchasing
AMPS of such series. The Auction Agent shall keep such registry current and
accurate based on the information provided to it from time to time by the
Broker-Dealer. The Trust shall provide or cause to be provided to the Auction
Agent at or prior to the Date of Original Issue of the AMPS of each series a
list of the initial Existing Holders of the shares of each such series of AMPS,
the number of shares purchased by each such Existing Holder and the respective
Broker-Dealer of each such Existing Holder or the affiliate thereof through
which each such Existing Holder purchased such shares. The Auction Agent may
rely upon, as conclusive evidence of the identities of the Existing Holders of
AMPS of any series (A) such list, (B) the results of Auctions, (C) notices from
any Broker-Dealer as described in the first sentence of Section 2.2(c)(iii)
hereof and (D) the results of any procedures approved by the Trust that have
been devised for the purpose of determining the identities of Existing Holders
in situations where AMPS may have been transferred without compliance with any
restriction on the transfer thereof set forth in the Auction Procedures.
(ii) In the event of any partial redemption of any series of AMPS,
the Auction Agent shall, at least two Business Days prior to the next Auction
for such series, request each Broker-Dealer to provide the Auction Agent with a
list of Persons who such Broker-Dealer believes are Existing Holders after
giving effect to such redemption based upon inquiries of the Persons reflected
in such Broker-Dealer's records as Beneficial Owners as a result of the most
recent Auction and with respect to each such Person, the number of AMPS of such
series such Broker-Dealer believes are owned by such Person after giving effect
to such redemption. In the absence of receiving any such information from any
Broker-Dealer, the Auction Agent may continue to treat the Persons listed in its
registry of Existing Holders as the beneficial owner of the number of AMPS of
such series shown in such registry.
(iii) The Auction Agent shall be required to register a transfer of
AMPS of any series from an Existing Holder of such AMPS only if such transfer is
to another Existing Holder, or other Person if permitted by the Trust, and only
if such transfer is made (A) pursuant to an Auction, or (B) the Auction Agent
has been notified in writing (I) in a notice substantially in the form of
Exhibit B to the Broker-Dealer Agreements by a Broker-Dealer of such transfer or
(II) in a notice substantially in the form of Exhibit C to the Broker-Dealer
Agreements by the Broker-Dealer of any Existing Holder, or other Person if
permitted by the Trust, that purchased or sold such AMPS in an Auction of the
failure of such AMPS to be transferred as a result of such Auction. The Auction
Agent is not required to accept any notice described in clause (B) of the
preceding sentence for an Auction unless the Auction Agent receives it by 3:30
P.M. on the Business Day preceding such Auction.
(d) The Auction Agent may, but shall have no obligation to, request
the Broker-Dealers, as set forth in the Broker-Dealer Agreements, to provide the
Auction Agent with a list of Persons who such Broker-Dealer believes are
Existing Holders based upon inquiries of those Persons such Broker-Dealer's
records indicate are Beneficial Owners as a result of the most recent Auction
and with respect to
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each such Person, the number of shares of such series of AMPS such Broker-Dealer
believes to be owned by such Person. The Auction Agent shall keep confidential
such registry of Existing Holders and shall not disclose the identities of the
Existing Holders of such AMPS to any Person other than the Trust and the
Broker-Dealer that provided such information; 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.
2.3 Auction Schedule.
The Auction Agent shall conduct Auctions in accordance with the schedule
set forth below. Such schedule may be changed by the Auction Agent with the
consent of the Trust, which consent shall not be unreasonably withheld. The
Auction Agent shall give written notice of any such change to each
Broker-Dealer. Such notice shall be given prior to the close of business on the
Business Day next preceding the first Auction Date on which any such change
shall be effective.
TIME EVENT
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By 9:30 A.M. Auction Agent advises the Trust and
Broker-Dealers of the Maximum Applicable Rate
and the Reference Rate used in determining such
Maximum Applicable Rate as set forth in Section
2.7 hereof.
9:30 A.M. - 1:30 P.M. Auction Agent assembles information
communicated to it by Broker-Dealers as
provided in Section 1(a) of the Auction
Procedures. Submission Deadline is 1:30 P.M.
Not earlier than 1:30 P.M. Auction Agent makes
determinations pursuant to Section 3(a) of the
Auction Procedures.
By approximately 3:30 P.M. Auction Agent advises
Trust 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 AMPS allocated as
provided in Section 4 of the Auction
Procedures. Auction Agent gives notice of
Auction results as set forth Section 2.4
hereof.
The Auction Agent shall follow the notification procedures set forth in
paragraph (a) of the Settlement Procedures.
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 AMPS by telephone or through its Auction Processing System as set
forth in paragraph (a) of the Settlement Procedures.
2.5 Broker-Dealers.
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(a) Not later than 12:00 Noon on each Auction Date for any series of
AMPS, the Trust shall pay to the Auction Agent an amount in cash equal to the
aggregate fees payable to the Broker-Dealers for such series pursuant to Section
2.6 of the Broker-Dealer Agreements for such series. The Auction Agent shall
apply such moneys as set forth in Section 2.6 of each such Broker-Dealer
Agreement.
(b) The Trust shall obtain the consent of the Auction Agent prior to
selecting any Person to act as a Broker-Dealer, which consent shall not be
unreasonably withheld.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement as
set forth therein if so directed by the Trust, provided that at least one
Broker-Dealer Agreement would be in effect for each series of AMPS after such
termination.
(d) Subject to the Auction Agent's having consented to the selection
of the relevant Broker-Dealer pursuant to Section 2.5(b) hereof, the Auction
Agent shall from time to time enter into such Broker-Dealer Agreements with one
or more Broker-Dealers as the Trust shall request, and shall enter into such
schedules to any such Broker-Dealer Agreements as the Trust shall request, which
schedules, among other things, shall set forth the series of AMPS to which such
Broker-Dealer Agreement relates.
2.6 Special Dividend Periods.
The provisions contained in Section 3 of Part I of the Statement
concerning Special Dividend Periods and the notification of a Special Dividend
Period will be followed by the Trust 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.
2.7 Determination of Maximum Applicable Rate.
(a) (i) On each Auction Date, the Auction Agent shall determine the
Maximum Applicable Rate. If any Reference Rate is not quoted on an interest or
bond equivalent, as the case may be, basis, the Auction Agent shall convert the
quoted rate to the interest or bond equivalent thereof as set forth in the
definition of such rate in the Statement if the rate obtained by the Auction
Agent is quoted on a discount basis, or if such rate is quoted on a basis other
than an interest or bond equivalent or discount basis the Auction Agent shall
convert the quoted rate to an interest or bond equivalent rate after
consultation with the Trust as to the method of such conversion.
(ii) If any Treasury Index Rate is to be based on rates supplied by
U.S. Government Securities Dealers and one or more of the U.S. Government
Securities Dealers shall not provide a quotation for the determination of such
Treasury Index Rate, the Auction Agent shall immediately notify the Trust so
that the Trust can determine whether to select a Substitute U.S. Government
Securities Dealer or Substitute U.S. Government Securities Dealers to provide
the quotation or quotations not being supplied by any U.S. Government Securities
Dealer or U.S. Government Securities Dealers. The Trust shall promptly advise
the Auction Agent of any such selection.
(iii) If any LIBOR Rate is to be determined by reference to Telerate
Page 3750 or by rate quotations provided by LIBOR Dealer(s), as the case may be,
and Telerate Page 3750 is unavailable or the LIBOR Dealer(s) fail to provide
rate quotations, as the case may be (as described in the Statement), then the
Auction Agent shall immediately notify the Trust so that the Trust can determine
whether to
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select a Substitute LIBOR Dealer(s) to provide such rate quotation(s) not being
supplied. The Trust shall promptly advise the Auction Agent of any such
selection.
2.8 Ownership of Shares of AMPS.
The Trust shall notify the Auction Agent if the Trust or any affiliate of
the Trust acquires any AMPS of any series. Neither the Trust nor any affiliate
of the Trust shall submit any Order in any Auction for AMPS, except as set forth
in the next sentence. Any Broker-Dealer that is an affiliate of the Trust may
submit Orders in Auctions, but only if such Orders are not for its own account.
For purposes of this Section 2.8, a Broker-Dealer shall not be deemed to be an
affiliate of the Trust solely because one or more of the directors or executive
officers of such Broker-Dealer or of any Person controlled by, in control of or
under common control with such Broker-Dealer is also a director of the Trust.
The Auction Agent shall have no duty or liability with respect to enforcement of
this Section 2.8.
2.9 Access to and Maintenance of Auction Records.
The Auction Agent shall afford to the Trust, its agents, independent
public accountants and counsel and the Broker-Dealers, access at reasonable
times during normal business hours to review and make extracts or copies of all
books, records, documents and other information concerning the conduct and
results of Auctions (at no cost to the Auction Agent), provided that any such
agent, accountant, counsel or Broker-Dealer shall furnish the Auction Agent with
a letter from the Trust requesting that the Auction Agent afford such person
access. The Auction Agent shall maintain records relating to any Auction for a
period of six years after such Auction, and such records shall, in reasonable
detail, accurately and fairly reflect the actions taken by the Auction Agent
hereunder.
3. The Auction Agent as Dividend and Redemption Price Disbursing Agent.
The Auction Agent, as dividend and redemption price disbursing agent,
shall pay to the Holders of AMPS of any series (i) on each Dividend Payment Date
for such series, dividends on the AMPS of such series, (ii) on any date fixed
for redemption of AMPS of any series, the Redemption Price of any shares of such
series called for redemption and (iii) any Late Charge related to any payment of
dividends or Redemption Price, in each case after receipt of the necessary funds
from the Trust with which to pay such dividends, Redemption Price or Late
Charge, and provide any notice in connection therewith that shall be required by
the Investment Company Act of 1940, as amended, and the rules and regulations of
the Securities and Exchange Commission thereunder, or as may otherwise be
requested by the Trust. The amount of dividends for any Dividend Period for any
series of AMPS to be paid by the Auction Agent to the Holders of such shares of
such series will be determined by the Trust as set forth in Section 2 of Part I
of the Statement with respect to such series. The Redemption Price of any shares
to be paid by the Auction Agent to the Holders will be determined by the Trust
as set forth in Section 9 of Part I of the Statement with respect to such
series. The Trust shall notify the Auction Agent in writing of a decision to
redeem shares of any series of AMPS at least five days prior to the date a
notice of redemption is required to be mailed to the Holders of the shares to be
redeemed by paragraph (c) of Section 9 of Part I of the Statement. Such notice
by the Trust to the Auction Agent shall contain the information required by
paragraph (c) of Section 9 of Part I of the Statement to be stated in the notice
of redemption required to be mailed by the Trust to such Holders.
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4. The Auction Agent as Transfer Agent and Registrar.
4.1 Issue of Stock or Shares Certificates.
Upon the Date of Original Issue of each series of AMPS, one or more
certificates representing all of the shares of such series issued on such date
shall be issued by the Trust and, at the request of the Trust, registered in the
name of Cede & Co. and countersigned by the Auction Agent.
4.2 Registration of Transfer of Shares.
Shares of each series of AMPS shall be registered solely in the name of
the Securities Depository or its nominee.
4.3 Removal of Legend on Restricted Shares.
All requests for removal of legends on AMPS of any series indicating
restrictions on transfer shall be accompanied by an opinion of counsel stating
that such legends may be removed and such shares freely transferred, such
opinion to be delivered under cover of a letter from a Trust Officer authorizing
the Auction Agent to remove the legend on the basis of said opinion.
4.4 Lost Stock or Share Certificates.
The Auction Agent shall 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 Trust and
the Auction Agent, subject at all times to provisions of law, the Declaration
and by-laws (the "By-Laws") of the Trust governing such matters and resolutions
adopted by the Trust with respect to lost securities. The Auction Agent may
issue new certificates in exchange for and upon the cancellation of mutilated
certificates. Any request by the Trust to the Auction Agent to issue a
replacement or new certificate pursuant to this Section 4.4 shall be deemed to
be a representation and warranty by the Trust to the Auction Agent that such
issuance will comply with such provisions of law and the By-Laws and resolutions
of the Trust.
4.5 Disposition of Cancelled Certificates; Record Retention.
The Auction Agent shall retain all stock or share certificates which have
been cancelled in transfer or exchange and all accompanying documentation in
accordance with applicable rules and regulations of the Securities and Exchange
Commission for two calendar years. The Trust shall also undertake to furnish to
the Securities and Exchange Commission and to the Board of Governors of the
Federal Reserve System, upon demand, at either the principal office or at any
regional office, complete, correct and current hard copies of any and all such
records.
4.6 Stock or Record Books.
For so long as the Auction Agent is acting as the transfer agent for any
series of AMPS pursuant to the Agreement, it shall maintain a stock or record
book containing a list of the Holders of the AMPS of each such series. In case
of any request or demand for the inspection of the stock or record books of the
Trust or any other books in the possession of the Auction Agent, the Auction
Agent will notify the Trust and secure instructions as to permitting or refusing
such inspection. The Auction Agent reserves the right, however, to exhibit the
stock or record books or other books to any Person 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
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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.
4.7 Return of Funds.
Any funds deposited with the Auction Agent hereunder by the Trust for any
reason, including but not limited to redemption of AMPS of any series, that
remain unpaid after sixty days shall be repaid to the Trust upon the written
request of the Trust.
5. Representations and Warranties.
5.1 Representations and Warranties of the Trust.
The Trust represents and warrants to the Auction Agent that:
(a) the Trust is duly organized and existing statutory trust in good
standing under the laws of the State of its organization and has full trust
power or all requisite power to execute and deliver the Agreement and to
authorize, create and issue the AMPS of each series, and the AMPS of each series
when issued, will be duly authorized, validly issued, fully paid and
nonassessable;
(b) the Agreement has been duly and validly authorized, executed and
delivered by the Trust and constitutes the legal, valid and binding obligation
of the Trust;
(c) the form of the certificate evidencing the AMPS of each series
complies or will comply with all applicable laws of the State of its
organization;
(d) when issued, the AMPS of each series will have been duly
registered under the Securities Act of 1933, as amended, 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 the
Agreement or will have been required in connection with the issuance of AMPS of
each series;
(e) the execution and delivery of the Agreement and the issuance and
delivery of the AMPS of each series 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 Declaration or the By-Laws of the Trust, any law or
regulation, any order or decree of any court or public authority having
jurisdiction, or any mortgage, indenture, contract, agreement or undertaking to
which the Trust is a party or by which it is bound the effect of which conflict,
violation, default or breach would be material to the Trust or the Trust and its
subsidiaries taken as a whole; and
(f) no taxes are payable upon or in respect of the execution of the
Agreement or the issuance of the AMPS of any series.
5.2 Representations and Warranties of the Auction Agent.
The Auction Agent represents and warrants to the Trust that:
(a) the Auction Agent is duly organized and is validly existing as a
banking corporation in good standing under the laws of New York and has the
corporate power to enter into and perform its obligations under this Agreement;
and
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(b) 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 to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equitable principles.
6. The Auction Agent.
6.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the Trust
hereunder and owes no fiduciary duties to any Person, other than the Trust, by
reason of the Agreement.
(b) The Auction Agent undertakes to perform such duties and only
such duties as are specifically set forth in the Agreement, and no implied
covenants or obligations shall be read into the Agreement against the Auction
Agent.
(c) In the absence of bad faith or negligence on its part, the
Auction Agent shall not be liable for any action taken, suffered, or omitted or
for any error of judgment made by it in the performance of its duties under the
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
the pertinent facts.
6.2 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 hereby which the Auction
Agent believes in good faith to have been given by the Trust or by a
Broker-Dealer. The Auction Agent may record telephone communications with the
Trust or with the Broker-Dealers or 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 it hereunder in good
faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to financial liability
in the performance of its duties hereunder.
(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys and shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed by it with due care 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, 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.
6.3 Compensation, Expenses and Indemnification.
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(a) The Trust shall pay the Auction Agent an annual fee as
compensation for all services rendered by it under the Agreement and the
Broker-Dealer Agreements as the Trust and the Auction Agent have agreed to from
time to time.
(b) The Trust shall reimburse the Auction Agent upon its request for
all reasonable out-of-pocket expenses, disbursements and advances incurred or
made by the Auction Agent in accordance with any provision of the Agreement and
the Broker-Dealer Agreements (including the compensation and the reasonable
expenses and disbursements of its agents (unless such agent is providing a
service for which the Auction Agent is already being compensated by the Trust)
and counsel), except any expense or disbursement attributable to its negligence
or bad faith. 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 Trust shall indemnify the Auction Agent for and hold it
harmless against any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with its agency under the
Agreement and the Broker-Dealer Agreements, including the costs and expenses of
defending itself against any such claim or liability in connection with its
exercise or performance of any of its duties hereunder and thereunder.
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 AMPS of any series 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.
7. Miscellaneous.
7.1 Term of Agreement.
(a) The term of the Agreement is unlimited unless it shall be
terminated as provided in this Section 7.1. The Trust may terminate the
Agreement at any time by so notifying the Auction Agent, provided that the Trust
has entered into an agreement in substantially the form of the Agreement with a
successor Auction Agent. The Auction Agent may terminate the Agreement upon
written notice to the Trust on the date specified in such notice, which date
shall be no earlier than 60 days after the date of delivery of such notice.
(b) Except as otherwise provided in this paragraph (b), the
respective rights and duties of the Trust and the Auction Agent under the
Agreement with respect to any series of AMPS shall cease upon termination of the
Agreement with respect to such series. The Trust's representations, warranties,
covenants and obligations to the Auction Agent under Sections 5 and 6.4 hereof
shall survive the termination of the Agreement with respect to any series of
AMPS. Upon termination of the Agreement with respect to any series of AMPS, the
Auction Agent shall, at the Trust's request, promptly deliver to the Trust
copies of all books and records maintained by it with respect to AMPS in
connection with its duties hereunder and to any successor Auction Agent any
funds then held by the Auction Agent for the benefit of the Holders of AMPS or
the Trust.
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7.2 Communications.
Except for (i) communications authorized to be by telephone pursuant to
the 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 address or telecopy number set forth below:
If to the Trust: Pioneer Floating Rate Trust
Xxxxxxx Xxxxxxxx
Secretary
c/o Pioneer Investment Management, Inc.
00 Xxxxx Xxxxxx
Xxxxxx XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Auction Agent: Deutsche Bank Trust Company Americas
Xxx Xxxxx
Corporate Trust Agency Services
27th Xxxxx, XX XXX00, 2715
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Each such notice, request or communication shall be effective when
delivered at the address specified herein. Communications shall be given on
behalf of the Trust by a Trust Officer and on behalf of the Auction Agent by
telephone (confirmed by telecopy or in writing) by an Authorized Officer.
7.3 Entire Agreement.
The Agreement (including the Auction and Settlement Procedures
incorporated herein) contains the entire agreement between the parties relating
to, and superseding any prior 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 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 Trust, 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) The Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged.
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(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.
The Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and assigns of each of the Trust and
the Auction Agent.
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 Disclosure of Information.
The Auction Agent agrees that it will not disclose or use any "non-public
personal information" about the Trust's shareholders other than such uses or
disclosures as are permitted by Regulation S-P under Section 504 of the
Xxxxx-Xxxxx Xxxxx Act ("Regulation S-P"). "Nonpublic personal information" about
a shareholder shall mean: (i) personally identifiable financial information;
(ii) any list, description, or other grouping of consumers that is derived from
using any personally identifiable information that is not publicly available;
and (iii) any other information that a Customer or the Transfer Agent is
prohibited from using or disclosing pursuant to Regulation S-P.
7.9 Governing Law.
The Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
[signatures on following page]
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Trust and the Auction Agent in accordance with its terms.
PIONEER FLOATING RATE TRUST
By: __________________________________
Name
Title
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: __________________________________
Name
Title
EXHIBIT A
FORM OF
BROKER-DEALER AGREEMENT
BROKER-DEALER AGREEMENT dated as of March [ ], 2005 (this "Agreement"),
among (i) Deutsche Bank Trust Company Americas, a New York banking corporation,
as auction agent (the "Auction Agent") (not in its individual capacity but
solely as agent of Pioneer Floating Rate Trust, a Delaware statutory trust (the
"Trust")) pursuant to authority granted to it in the Auction Agency Agreement
and (ii) [ ], as broker-dealer (together with its successors and
assigns as such hereinafter referred to as "BD").
The Trust intends to issue three series of Auction Market Preferred
Shares, each with a par value per share of $[ ] and a liquidation
preference of $25,000 per share, designated Series M7, Series W7 and Series TH7
(collectively, the "AMPS"). The shares of the AMPS shall be issued in book-entry
form through the facilities of the Securities Depository. References to "Shares
of AMPS" or "AMPS" in this Agreement shall refer only to the beneficial
interests in the AMPS unless the context otherwise requires.
The Auction Procedures require the participation of a Broker-Dealer.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Auction Agent, the Trust and BD
agree as follows:
1. Definitions and Rules of Construction
1.1 Terms Defined by Statement of Preferences. Capitalized terms used but
not defined herein shall have the respective meanings specified in the
Statement.
1.2 Terms Defined Herein. As used herein and in the Settlement Procedures,
the following terms shall have the following meanings, unless the context
otherwise requires:
(a) "Agent Member" of any Person shall mean the member of, or
participant in, the Securities Depositary that will act on behalf of a Bidder.
(b) "Auction" shall have the meaning specified in Section 2.1
hereof.
(c) "Auction Procedures" shall mean the auction procedures
constituting Part II of the form of Statement.
(d) "Authorized Officer" of the Auction Agent shall mean each Senior
Vice President, Vice President, Assistant Vice President, and Associate of the
Auction Agent assigned to its Corporate Trust and Agency Group and every other
officer or employee of the Auction Agent designated as an "Authorized Officer"
for purposes hereof in a communication to the Trust.
(e) "Settlement Procedures" shall mean the Settlement Procedures
attached to the Auction Agency Agreement as Exhibit B.
(f) "Statement" shall mean the Statement of Preferences of Auction
Market Preferred Shares, as the same may be amended, supplemented or modified
from time to time.
(g) "Trust Officer" shall mean the Chairman, the President, each
Vice President (whether or not designated by a number or word or words added
before or after the title "Vice President"), the Secretary, the Treasurer, each
Assistant Vice President, each Assistant Secretary and each Assistant Treasurer
of the Trust and every other officer or employee of the Trust designated as a
"Trust Officer" for purposes hereof in a notice to the Auction Agent.
1.3 Rules of Construction. Unless the context or use indicates another or
different meaning or intent, the following rules shall apply to the construction
of this Agreement:
(a) Words importing the singular number shall include the plural
number and vice versa.
(b) The captions and headings herein are solely for convenience of
reference and shall not constitute a part of this Agreement nor shall they
affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto," and other words of
similar import refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to
New York City time.
(e) Section 1 and 2 hereof shall be read in conjunction with the
Statement and in the event of any conflict with the Statement, the Statement
shall take precedence.
1.4 Warranties of BD. BD hereby represents and warrants that this
Broker-Dealer Agreement has been duly authorized, executed and delivered by BD
and that, assuming the due authorization, execution and delivery hereof by the
Auction Agent, this Broker-Dealer Agreement constitutes a valid and binding
agreement of BD, enforceable against it in accordance with its terms. BD's
representations and warranties in this Section 1.4 shall survive the termination
of this Agreement.
2. The Auctions.
2.1 Purpose; Incorporation by Reference of Auction Procedures and
Settlement Procedures.
(a) On each Auction Date, the provisions of the Auction Procedures
will be followed by the Auction Agent for the purpose of determining the
Applicable Rate for the AMPS for the next Dividend Period. Each periodic
implementation of such procedures is hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures and
the Settlement Procedures are incorporated herein by reference in their entirety
and shall be deemed to be a part of this Agreement to the same extent as if such
provisions were fully set forth herein.
(c) BD agrees to act as, and assumes the obligations of and
limitations and restrictions placed upon, a Broker-Dealer under this Agreement.
(d) BD acknowledges and agrees that each provision of the Auction
Procedures that requires BD to perform an obligation or procedure is hereby
incorporated herein by reference and that this Agreement shall constitute the
Trust's instruction, and BD hereby agrees, to perform such obligations and
procedures without further request by or instructions from the Trust.
(e) BD may participate in Auctions for its own account.
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2.2 Preparation for Each Auction.
(a) Not later than 9:30 a.m. on each Auction Date, the Auction Agent
shall advise BD by telephone or other electronic means, to be confirmed in
writing by the Auction Agent, of the Maximum Applicable Rate and Reference Rate.
(b) BD shall cause the Maximum Applicable Rate to be communicated as
promptly as practicable to its customers who hold or may be interested in
acquiring AMPS.
(c) If required by applicable law, or requested by the Auction
Agent, BD shall provide a list of Existing Holders based upon inquiries of those
Persons such Broker-Dealer believes are Beneficial Owners as a result of the
most recent Auction to the Auction Agent promptly after any date so requested by
the Auction Agent. The Auction Agent shall keep confidential any such
information, including information received as to the identity of Bidders in any
Auction, and shall not disclose any such information so provided to any Person
other than the other parties hereto, provided that the Auction Agent each
reserves the right to disclose any such information if (a) it is ordered to do
so by a court of competent jurisdiction or a regulatory, judicial or
quasi-judicial agency, (b) it is advised by its counsel that its failure to do
so would be unlawful or (c) failure to do so would expose the Auction Agent to
loss, liability, claim, damage or expense for which it has not received
indemnity satisfactory to it.
(d) BD agrees to maintain a list of customers relating to the AMPS
and to use its best efforts, subject to existing laws and regulations, to
contact the customers on such list whom BD believes may be interested in
participating in the Auction on each Auction Date, as a Potential Holder or a
Potential Beneficial Owner, for the purposes set forth in the Auction
Procedures. Nothing herein shall require BD to submit an Order for any customer
in any Auction.
(e) The Auction Agent's registry of Existing Holders of shares of
the AMPS shall be conclusive and binding on BD. BD may inquire of the Auction
Agent between 3:00 P.M. on the Business Day preceding an Auction for shares of
the AMPS and 9:30 A.M. on the Auction Date for such Auction to ascertain the
number of shares in respect of which the Auction Agent has determined BD to be
an Existing Holder. If BD believes it is the Existing Holder of fewer shares
than specified by the Auction Agent in response to BD's inquiry, BD may so
inform the Auction Agent of that belief. BD shall not, in its capacity as
Existing Holder of shares of the AMPS, submit Orders in such Auction in respect
of shares of the AMPS covering in the aggregate more than the number of shares
of the AMPS specified by the Auction Agent in response to BD's inquiry.
2.3 Auction Schedule; Method of Submission of Orders.
(a) The Auction Agent shall conduct Auctions in accordance with the
schedule set forth below. Such schedule may be changed at any time by the
Auction Agent with the consent of the Trust, which consent shall not be
unreasonably withheld. The Auction Agent shall give written notice of any such
change to BD which shall have the right to review such change. Such notice shall
be received one Business Day prior to the first Auction Date on which any such
change shall be effective.
Time Event
---- -----
By 9:30 a.m. Auction Agent advises the Trust and
the Broker-Dealer of the Maximum Applicable
Rate and the
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Reference Rate as set forth in
Section 2.2(a) hereof.
9:30 a.m. - 1:30 p.m. Auction Agent assembles information
communicated to it by Broker-Dealer as
provided in Section 1(a) of the Auction
Procedures. Submission Deadline is
1:30 p.m.
Not earlier than Auction Agent makes determinations
1:30 p.m. pursuant to 3(a) of the Auction
Procedures.
By approximately Auction Agent advises the Trust of
3:30 p.m. results of Auction as provided in
Section 3(b) of the Auction Procedures.
Submitted Bids and Submitted Sell Orders are
accepted and rejected in whole or in part and
AMPS are allocated as provided in Section 4 of
the Auction Procedures. Auction Agent gives
notice of Auction results as set forth in
Section 2.4(a) hereof.
(b) BD may designate one or more individuals in its organization who
will coordinate its procedures in connection with Auctions and purchases and
sales of shares of the AMPS.
(c) BD agrees to handle its customers' order in accordance with its
duties under applicable securities laws and rules.
(d) To the extent that pursuant to Section 4 of the Auction
Procedures of the Trust, BD continues to hold, sells or purchases a number of
shares that is fewer than the number of shares in an Order submitted by BD to
the Auction Agent in which BD designated itself as an Existing Holder or
Potential Holder in respect of customer Orders, BD shall make appropriate pro
rata allocations among its customers for which it submitted Orders of similar
tenor. If as a result of such allocations, any Beneficial Owner would be
entitled or required to sell, or any Beneficial Owner would be entitled or
required to purchase, a fraction of a Share of AMPS on any Auction Date, BD
shall, in such manner as it shall determine in its sole discretion, round up or
down the number of AMPS to be purchased or sold on such Auction Date by any
Beneficial Owner or Potential Beneficial Owner on whose behalf BD submitted an
Order so that the number of shares so purchased or sold by each such Beneficial
Owner or Potential Beneficial Owner on such Auction Date shall be whole shares.
(e) BD shall submit Orders to the Auction Agent in writing in
substantially the form attached hereto as Exhibit A. BD shall submit separate
Orders to the Auction Agent for each Potential Holder or Existing Holder on
whose behalf BD is submitting an Order and shall not net or aggregate the Orders
of Potential Holders or Existing Holders on whose behalf BD is submitting
Orders.
(f) BD shall deliver to the Auction Agent (i) a written notice,
substantially in the form attached hereto as Exhibit B, of transfers of AMPS
made through BD by an Existing Holder to another Person other than pursuant to
an Auction and (ii) a written notice, substantially in the form attached hereto
as Exhibit C, of the failure of any AMPS to be transferred to or by any Person
that purchased or sold AMPS through BD pursuant to an Auction. The Auction Agent
is not required to accept any notice delivered pursuant to the terms of the
foregoing sentence with respect to an Auction unless the Auction Agent receives
it by 3:30 p.m. on the Business Day preceding such Auction.
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2.4 Notices.
(a) On each Auction Date, the Auction Agent shall notify BD by
telephone or facsimile (or other electronic means acceptable to both parties) of
the results of the Auction as set forth in paragraph (a) of the Settlement
Procedures. By approximately 11:30 A.M. on the Business Day next succeeding such
Auction Date, the Auction Agent shall notify BD in writing of the disposition of
all Orders submitted by BD in the Auction held on such Auction Date.
(b) BD shall notify each Existing Holder or Potential Holder on
whose behalf BD has submitted an Order as set forth in paragraph (b) of the
Settlement Procedures and take such other action as is required of BD pursuant
to the Settlement Procedures.
2.5 Notification of Dividend.
The provisions contained in Section 3 of Part I of the Statement
concerning the notification of a Special Rate Period will be followed by the
Auction Agent and BD, and the provisions contained therein are incorporated
herein by reference in their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions were set forth fully herein.
2.6 Service Charge to Be Paid to BD.
(a) No later than 12:00 noon on each Dividend Payment Date, the
Auction Agent after each Auction will pay a service charge from funds provided
by the Trust to each Broker-Dealer on the basis of the purchase price of AMPS
placed by such Broker-Dealer at such Auction. The service charge shall be (i) in
the case of any Auction Date immediately preceding a Dividend Period other than
a Special Dividend Period, the product of (A) a fraction the numerator of which
is the number of days in such Dividend Period (calculated by counting the date
of original issue of such shares to but excluding the next succeeding dividend
payment date of such shares) and the denominator of which is 360, times (B) 1/4
of 1%, times (C) $25,000 times (D) the sum of (1) the aggregate number of shares
of any series of AMPS placed by BD in the applicable Auction that were (x) the
subject of a Submitted Bid of a Beneficial Owner submitted by BD and continued
to be held as a result of such submission and (y) the subject of a Submitted Bid
of a Potential Beneficial Owner submitted by BD and were purchased as a result
of such submission plus (2) the aggregate number of shares of any series of AMPS
subject to valid Hold Orders (determined in accordance with Section 1 of Part II
of the Statement) submitted to the Auction Agent by BD plus (3) the number of
shares of any series of AMPS deemed to be subject to Hold Orders by Beneficial
Owners pursuant to Section 1 of Part II of the Statement that were acquired by
BD for its own account or were acquired by such Beneficial Owners through BD,
and (ii) in the case of any Special Dividend Period the amount determined by
mutual consent of the Trust and any such Broker-Dealers and shall be based upon
a selling concession that would be applicable to an underwriting of fixed or
variable rate AMPS with a similar final maturity or variable rate dividend
period, respectively, at the commencement of the Dividend Period with respect to
such Auction. For purposes of subclause (i)(D)(3) of the foregoing sentence, if
any Beneficial Owner who acquired shares of any series of Preferred Shares
through BD transfers those shares to another Person other than pursuant to an
Auction, then the Broker-Dealer for the shares 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 shares.
(b) If the Trust determines to change the rate at which the
Broker-Dealer Fee accrues, the Trust shall mail to the Auction Agent a notice
thereof within two Business Days of such change. Any change in the Broker-Dealer
Fee Rate shall be effective on the Auction Date next succeeding the Auction
Agent's receipt of notice of such change.
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2.7 Settlement.
(a) If any Existing Holder selling AMPS in an Auction fails to
deliver such AMPS (by authorized book-entry), the BD of any Person that was to
have purchased AMPS in such Auction may deliver to such Person a number of
Shares of AMPS that is less than the number of Shares of AMPS that otherwise
were to be purchased by such Person. In such event, the number of Shares of AMPS
to be so delivered shall be determined by BD. Delivery of such lesser number of
Shares of AMPS shall constitute good delivery. Upon the occurrence of any such
failure to deliver Shares of AMPS, BD shall deliver to the Auction Agent the
notice required by Section 2.3(f)(ii) hereof. Notwithstanding the foregoing
provisions of this Section 2.7(a), any delivery or non-delivery of AMPS which
represents any departure from the results of an Auction, as determined by the
Auction Agent, shall be of no effect unless and until the Auction Agent shall
have been notified of such delivery or non-delivery in accordance with the terms
of Section 2.3(f) hereof. The Auction Agent shall have no duty or liability with
respect to enforcement of this Section 2.7(a).
(b) Neither the Auction Agent nor the Trust shall have any
responsibility or liability with respect to the failure of an Existing Holder, a
Potential Holder or an Agent Member or any of them to deliver AMPS or to pay for
AMPS sold or purchased pursuant to the Auction Procedures or otherwise.
(c) Notwithstanding any provision of the Auction Procedures or the
Settlement Procedures to the contrary, in the event BD is an Existing Holder
with respect to shares of the AMPS and the Auction procedures provide that BD
shall be deemed to have submitted a Sell Order in an Auction with respect to
such shares if BD fails to submit an Order in that Auction with respect to such
shares, BD shall have no liability to any Person for failing to sell such shares
pursuant to such a deemed Sell Order if (i) such shares were transferred by the
beneficial owner thereof without notification of such transfer in compliance
with the Auction Procedures or (ii) BD has indicated to the Auction Agent
pursuant to Section 2.2(e) of this Agreement that, according to BD's records, BD
is not the Existing Holder of such shares.
(d) Notwithstanding any provision of the Auction Procedures or the
Settlement Procedures to the contrary, in the event an Existing Holder or
Beneficial Owner of shares of the AMPS with respect to whom a Broker-Dealer
submitted a Bid to the Auction Agent for such shares that was accepted in whole
or in part, or submitted or is deemed to have submitted a Sell Order for such
shares that was accepted in whole or in part, fails to instruct its Agent Member
to deliver such shares against payment therefore, partial deliveries of AMPS
that have been made in respect of Potential Holders' or Potential Beneficial
Owners' Submitted Bids for shares of such series that have been accepted in
whole or in part shall constitute good delivery to such Potential Holders and
Potential Beneficial Owners.
3. The Auction Agent
3.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the Trust
hereunder and owes no duties, fiduciary or otherwise, to any other Person.
(b) The Auction Agent undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement, the Auction Agency
Agreement, Auction Procedures or the Settlement Procedures against the Auction
Agent.
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(c) In the absence of bad faith or negligence on its part, the
Auction Agent shall not be liable for any action taken, suffered, or omitted or
for any error of judgment made by it in the performance of its duties under this
Agreement. The Auction Agent shall not be liable for any error resulting from
the use or reliance on a source of information used in good faith and without
negligence to make any determination, calculation or declaration hereunder. The
Auction Agent shall not be liable for any error of judgment made in good faith
unless the Auction Agent shall have been negligent in ascertaining or failing to
ascertain the pertinent facts. In no event shall the Auction Agent be liable for
special, punitive, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Auction
Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(d) The Auction Agent shall not be: (i) required to, and does not,
make any representations or have any responsibilities as to the validity,
accuracy, value or genuineness of any signatures or endorsements, other than its
own; (ii) obligated to take any legal action hereunder that might, in its
judgment, involve any expense or liability, unless it has been furnished with
indemnity satisfactory to the Auction Agent; and (iii) responsible for or liable
in any respect on account of the identity, Trust or rights of any Person (other
than itself and its agents and attorneys) executing or delivering or purporting
to execute or deliver any document under this Agreement or any Broker-Dealer
Agreement.
(e) The Auction Agent shall not be responsible or liable for any
failure or delay in the performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
reasonable control; it being understood that the Auction Agent shall use
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
3.2 Rights of the Auction Agent.
(a) The Auction Agent may conclusively rely and shall be fully
protected in acting or refraining from acting upon any communication authorized
by this Agreement and upon any written instruction, notice, request, direction,
consent, report, certificate, share certificate or other instrument, paper or
document believed by it to be genuine. The Auction Agent shall not be liable for
acting upon any communication authorized by this Agreement (including, but not
limited to, any made by telephone, telecopier or other means of electronic
communication acceptable to the parties hereto) which the Auction Agent believes
in good faith to have been given by the Trust or by BD. The Auction Agent may
record telephone communications with BD.
(b) The Auction Agent may consult with counsel of its own choice,
and the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or
risk its own funds or otherwise incur or become exposed to financial liability
in the performance of its duties hereunder.
(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys and shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed by it with due care.
3.3 Auction Agent's Disclaimer. The Auction Agent makes no representation
as to, and shall have no liability with respect to, the correctness of the
recitals in, or the validity, adequacy or accuracy of, this Agreement, the
Auction Agency Agreement, the Auction Procedures, the offering material used in
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connection with the offer and sale of the AMPS or any other agreement or
instrument executed in connection with the transactions contemplated herein or
in any thereof.
4. Miscellaneous
4.1 Termination.
(a) Any party may terminate this Agreement at any time upon five (5)
days written notice to the other parties, which notice may be given by facsimile
as provided in Section 4.3 hereof. This Agreement shall automatically terminate
upon the redemption of all outstanding AMPS or upon termination of the Auction
Agency Agreement.
(b) BD represents that it (or if BD does not act as Agent Member,
one of its affiliates) shall make all dividend payments on the AMPS available in
same-day funds on each Dividend Payment Date to customers that use BD or
affiliate as Agent Member.
4.2 Agent Member. BD is, and shall remain for the term of this Agreement,
a member of, or participant in, the Securities Depository (or an affiliate of
such a member or participant).
4.3 Communications. Except for (i) communications authorized to be by
telephone pursuant to this Agreement or the Auction Procedures and (ii)
communications in connection with the Auctions (other than those expressly
required to be in writing), all notices, requests and other communications to
any party hereunder shall be in writing (for the purposes of this Agreement,
telecopy or other means of electronic communication acceptable to the parties
shall be deemed to be in writing) and shall be given to such party, addressed to
it, at its address, telecopy number set forth below and, where appropriate
reference the particular Auction to which such notice relates:
If to BD,
addressed: [ ]
If to the Auction
Agent, addressed: Deutsche Bank Trust Company Americas
Corporate Trust and Agency Services, 00xx Xxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Trust,
addressed: Pioneer Floating Rate Trust
c/o Pioneer Investment Management, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx, Secretary
Telephone No.: (617) 000- 0000
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Facsimile No.: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for such purpose by notice to the other parties. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of BD by a BD Officer, on behalf of the
Auction Agent by an Authorized Officer and on behalf of the Trust by an
Authorized Trust Officer. Telephone communications may be recorded.
4.4 Entire Agreement. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof, and there are no other
representations, endorsements, promises, agreements or understandings, oral,
written or inferred, between the parties relating to the subject matter hereof.
4.5 Benefits. Nothing in this Agreement, express or implied, shall give to
any person, other than the Auction Agent, the Trust and BD and their respective
successors and permitted assigns, any benefit of any legal or equitable right,
remedy or claim under this Agreement.
4.6 Amendment; Waiver.
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of each of the
parties hereto.
(b) Failure of any party to this Agreement to exercise any right or
remedy hereunder in the event of a breach of this Agreement by any other party
shall not constitute a waiver of any such right or remedy with respect to any
subsequent breach.
4.7 Successors and Assigns. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by, the respective successors and permitted
assigns of each of the parties hereto. This Agreement may not be assigned by any
party hereto absent the prior written consent of the other parties.
4.8 Severability. If any clause, provision or section of this Agreement
shall be ruled invalid or unenforceable by any court of competent jurisdiction,
the invalidity or unenforceability of such clause, provision or section shall
not affect any remaining clause, provision or section hereof.
4.9 Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
4.10 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW, OTHER THAN SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW OF NEW YORK).
[signatures on following page]
A-9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Auction Agent
By:___________________________
Name:
Title:
[ ]
as Broker-Dealer
By:___________________________
Name:
Title:
A-10
Exhibit A
To BROKER-DEALER AGREEMENT
AUCTION BID FORM
(Submit only one Order on this Order Form)
PIONEER FLOATING RATE TRUST
Auction Market Preferred Shares ("AMPS")
To: Deutsche Bank Trust Company Americas
Corporate Trust and Agency Services, 27th Date of Auction
Floor ____________
00 Xxxx Xxxxxx Series of AMPS
Xxx Xxxx, XX 00000 (indicate by
Attn: Xxx Xxxxx Number Designation)
Telecopier No. (000) 000-0000 _______
The undersigned Broker-Dealer submits the following Order on behalf of the
Bidder listed below:
Name of Bidder: __________________________________
Bidder placed the Order listed below covering the number of shares
indicated
(complete only one blank):
_________________ number of Shares of AMPS now held by
Bidder (an Existing Holder), and the Order is a (check one):
[ ] Hold Order; or
[ ] Bid at a rate of ____%; or
[ ] Sell Order;
- or -
_________________ number of Shares of AMPS not now held
by Bidder (a Potential Holder), and the Order is
a Bid at a rate of ______%
Notes:
(1) If submitting more than one Bid for one Bidder, use additional Order
Forms.
(2) If one or more Bids covering in the aggregate more than the outstanding
number of Shares of AMPS held by any Existing Holder are submitted, such
Bids shall be considered valid in the order of priority set forth in the
Auction Procedures.
(3) A Hold or Sell Order may be placed only by an Existing Holder covering a
number of Shares of AMPS not greater than the number of Shares of AMPS
currently held by such Existing Holder.
(4) Potential Holders may make Bids only, each of which must specify a rate.
If more than one Bid is submitted on behalf of any Potential Holder, each
Bid submitted shall be a separate Bid with the rate specified.
(5) Bids may contain no more than three figures to the right of the decimal
point (.001 of 1%).
(6) An Order must be submitted in whole Shares of AMPS with an aggregate
liquidation preference of $25,000.
[ ]
By:_________________________________________
A-11
Exhibit B
To BROKER-DEALER AGREEMENT
(To be used only for transfers made other than
pursuant to an Auction)
TRANSFER FORM
PIONEER FLOATING RATE TRUST
Auction Market Preferred Shares ("AMPS")
Series __ AMPS
(indicate by Letter/Number Designation)
We are (check one):
[ ] the Existing Holder named below; or
[ ] the Broker-Dealer for such Existing Holder; or
[ ] the Agent Member for such Existing Holder.
We hereby notify you that such Existing Holder will transfer ___
Shares of AMPS to ____________________ and represent that such transfer complies
with the requirements of the Agreement and Declaration of Trust of Pioneer
Floating Rate Trust, the Statement of Preferences of Auction Market Preferred
Shares and applicable federal and state law. Upon the request of the Trust or
the Auction Agent the undersigned will provide such documentation as shall be
reasonably requested to demonstrate such compliance as a condition of the
registration of such transfer.
PIONEER FLOATING RATE TRUST
By: _______________________________
Name:
Title:
(Name of Existing Holder)
(Name of Broker-Dealer)
(Name of Agent Member)
By: _______________________________
Name:
Title:
A-12
Exhibit C
To BROKER-DEALER AGREEMENT
(To be used only for failures to deliver
AMPS sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
PIONEER FLOATING RATE TRUST
Auction Market Preferred Shares ("AMPS")
Series __ AMPS
(indicate by Letter/Number Designation)
Complete either I. or II.
I. We are a Broker-Dealer for ______________ (the "Purchaser"), which
purchased ____ Shares of AMPS in the Auction held on __________________
from the seller of such AMPS.
II. We are a Broker-Dealer for _____________ (the "Seller"), which sold ____
Shares of AMPS in the Auction held on ____________________ to the
purchaser of such AMPS.
We hereby notify you that (check one):
__________ the Seller failed to deliver such AMPS to the Purchaser; or
__________ the Purchaser failed to make payment to the Seller upon delivery of
such AMPS.
[ ]
By:_________________________________
Printed Name:
Title:
A-13
Capitalized terms used in this letter, unless otherwise defined herein,
shall have the meanings set forth in the offering documents for the AMPS.
(Name of Purchaser/Seller)
By:________________________________
Name:
Title:
Address:___________________________
___________________________________
___________________________________
Dated:
A-14
EXHIBIT B
SETTLEMENT PROCEDURES
The following summary of Settlement Procedures sets forth the procedures
expected to be followed in connection with the settlement of each Auction and
will be incorporated by reference in the Auction Agency Agreement and each
Broker-Dealer Agreement. Nothing contained in this Appendix constitutes a
representation by the Trust that in each Auction each party referred to herein
will actually perform the procedures described herein to be performed by such
party.
(a) On each Auction Date, the Auction Agent shall notify by
telephone the Broker-Dealers that participated in the Auction held on such
Auction Date and submitted an order on behalf of any Existing Holder or
Potential Holder of:
(i) the Applicable Rate fixed for the next succeeding Dividend
Period;
(ii) whether Sufficient Clearing Bids existed for the
determination of the Applicable Rate;
(iii) if such Broker-Dealer (a "Seller's Broker-Dealer")
submitted a Bid or Sell Order on behalf of an Existing Holder, the
number of shares, if any, of AMPS to be sold by such Existing
Holder;
(iv) if such Broker-Dealer (a "Buyer's Broker-Dealer")
submitted a Bid on behalf of a Potential Holder, the number of
shares, if any, of AMPS to be purchased by such Potential Holder;
(v) if the aggregate number of AMPS to be sold by all Existing
Holders on whose behalf such Broker-Dealer submitted a Bid or a Sell
Order exceeds the aggregate number of AMPS to be purchased by all
potential Holders on whose behalf such Broker-Dealer submitted a
Bid, the name or names of one or more Buyer's Broker-Dealers (and
the name of the Agent Member, if any, of each such Buyer's
Broker-Dealer) acting for one or more purchasers of such excess
number of AMPS and the number of such shares to be purchased from
one or more Existing Holders on whose behalf such Broker-Dealer
acted by one or more Potential Holders on whose behalf each of such
Buyer's Broker-Dealers acted;
(vi) if the aggregate number of AMPS to be purchased by all
Potential Holders on whose behalf such Broker-Dealer submitted a Bid
exceeds the aggregate number of AMPS to be sold by all Existing
Holders on whose behalf such Broker-Dealer submitted a Bid or a Sell
Order, the name or names of one or more Seller's Broker Dealers (
and the name of the Agent Member, if any, of each such Seller's
Broker-Dealer) acting for one or more sellers of such excess number
of AMPS and the number of such shares to be sold to one or more
Potential holders on whose behalf such Broker-Dealer acted by one or
more Existing Holders on whose behalf each of such Seller's
Broker-Dealers acted; and
(vii) the Auction Date of the next succeeding Auction with
respect to the AMPS.
B-1
(b) On each Auction Date, each Broker-Dealer that submitted an Order
on behalf of any Existing Holder or Potential Holder shall:
(i) in the case of a Broker-Dealer that is a Buyer's
Broker-Dealer, instruct each Potential Holder on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in
part, to instruct such Potential Holder's Agent Member to pay to
such Broker - Dealer (or its Agent Member) through the Securities
Depository the amount necessary to purchase the number of AMPS to be
purchased pursuant to such Bid against receipt of such shares and
advise such Potential Holder of the Applicable Rate for the next
succeeding Dividend Period;
(ii) in the case of a Broker - Dealer that is a Seller's
Broker-Dealer, instruct each Existing Holder on whose behalf such
Broker-Dealer submitted a Sell Order that was accepted, in whole or
in part, to instruct such Existing Holder's Agent Member to deliver
to such Broker-Dealer (or its Agent Member) through the Securities
Depository the number of AMPS to be sold pursuant to such Order
against payment therefor and advise any such Existing Holder that
will continue to hold AMPS of the Applicable Rate for the next
succeeding Dividend Period;
(iii) advise each Existing Holder on whose behalf such
Broker-Dealer submitted a Hold Order of the Applicable Rate for the
next succeeding Dividend Period;
(iv) advise each Existing Holder on whose behalf such
Broker-Dealer submitted an Order of the Auction Date for the next
succeeding Auction; and
(v) advise each Potential Holder on whose behalf such
Broker-Dealer submitted a Bid that was accepted, in whole or in
part, of the Auction Date for the next succeeding Auction.
(c) On the basis of the information provided to it pursuant to (a)
above, each Broker-Dealer that submitted a Bid or a Sell Order on behalf of a
Potential Holder or an Existing Holder shall, in such manner and at such time or
times as in its sole discretion it may determine, allocated any funds received
by it pursuant to (b)(i) above and any AMPS received by it pursuant to (b)(ii)
above among the Potential Holders, if any, on whose behalf such Broker-Dealer
submitted Bids, the Existing Holders, if any, on whose behalf such Broker-Dealer
submitted Bids that were accepted or Sell Orders, and any Broker-Dealer or
Broker-Dealers identified to it by the Auction Agent pursuant to (a)(v) or
(a)(vi) above.
(d) On each Auction Date:
(i) each Potential Holder and Existing Holder shall instruct
its Agent Member as provided in (b)(i) or (ii) above, as the case
may be;
(ii) each Seller's Broker-Dealer which is not an Agent Member
of the Securities Depository shall instruct its Agent Member to (A)
pay through the Securities Depository to the Agent Member of the
Existing Holder delivering shares to such Broker-Dealer pursuant to
(b)(ii) above the amount necessary to purchase such shares against
receipt of such shares, and (B) deliver such shares through the
Securities Depository to a Buyer's Broker-Dealer (or its Agent
Member) identified to such Seller's Broker-Dealer pursuant to (a)(v)
above against payment therefor; and
B-2
(iii) each Buyer's Broker-Dealer which is not an Agent Member
of the Securities Depository shall instruct its Agent Member to (A)
pay through the Securities Depository to a Seller's Broker-Dealer
(or its Agent Member) identified pursuant to (a) (vi) above the
amount necessary to purchase the shares to be purchased pursuant to
(b) (i) above against receipt of such shares, and (B) deliver such
shares through the Securities Depository to the Agent Member of the
purchaser thereof against payment therefor.
(e) On the day after the Auction Date:
(i) each Bidder's Agent Member referred to in (d) (i) above
shall instruct the Securities Depository to execute the transactions
described under (b) (i) or (ii) above, and the Securities Depository
shall execute such transactions;
(ii) each Seller's Broker-Dealer or its Agent Member shall
instruct the Securities Depository to execute the transactions
described in (d) (ii) above, and the Securities Depository shall
execute such transactions; and
(iii) each Buyer's Broker-Dealer or its Agent Member shall
instruct the Securities Depository to execute the transactions
described in (d) (iii) above, and the Securities Depository shall
execute such transactions.
(f) If an Existing Holder selling AMPS in an Auction fails to
deliver such shares (by authorized book-entry), a Broker-Dealer may deliver to
the Potential Holder on behalf of which it submitted a Bid that was accepted a
number of whole AMPS that is less than the number of shares that otherwise was
to be purchased by such Potential Holder. In such event, the number of AMPS to
be so delivered shall be determined solely by such Broker-Dealer. Delivery of
such lesser number of shares shall constitute good delivery. Notwithstanding the
foregoing terms of this paragraph (f), any delivery or non-delivery of shares
which shall represent any departure from the results of an Auction, as
determined by the Auction Agent, shall be of no effect unless and until the
Auction Agent shall have been notified of such delivery or non-delivery in
accordance with the provisions of the Auction Agent Agreement and the
Broker-Dealer Agreements.
B-3
