Exhibit k.3
PIMCO CORPORATE OPPORTUNITY FUND
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AUCTION AGENCY AGREEMENT
dated as of February __, 2003
Relating to
Auction Market Preferred Shares
Series M, Series T, Series W,
Series TH and Series F
of
PIMCO Corporate Opportunity Fund
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
AUCTION AGENCY AGREEMENT
This Auction Agency Agreement (this "Agreement"), dated as of February __,
2003 is between PIMCO Corporate Opportunity Fund (the "Fund") and Deutsche Bank
Trust Company Americas, a New York banking corporation.
The Fund proposes to issue an aggregate of 22,600 preferred shares, par
value $0.00001 per share, liquidation preference $25,000 per share, designated
as Auction Market Preferred Shares, Series M, Auction Market Preferred Shares,
Series T, Auction Market Preferred Shares, Series W, Auction Market Preferred
Shares, Series TH, and Auction Market Preferred Shares, Series F (the "AMPS"),
pursuant to the Fund's Second Amended and Restated Bylaws (as defined below).
The Fund desires that Deutsche Bank Trust Company Americas perform certain
duties as auction agent in connection with each Auction (as defined below) of
AMPS (in such capacity, the "Auction Agent"), and as the transfer agent,
registrar, dividend paying agent and redemption agent with respect to the APMS
(in such capacity, the "Paying Agent"), upon the terms and conditions of this
Agreement, and the Fund hereby appoints Deutsche Bank Trust Company Americas as
said Auction Agent and Paying Agent in accordance with those terms and
conditions (hereinafter generally referred to as the "Auction Agent," except in
Sections 3 and 4 below).
NOW, THEREFORE, in consideration of the promises and the mutual covenants
contained herein, the Fund and the Auction Agent agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined by Reference to the Second Amended and Restated Bylaws.
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Capitalized terms used herein but not defined herein shall have the
respective meanings specified in the Second Amended and Restated Bylaws.
1.2 Certain Defined Terms.
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As used herein and in the Settlement Procedures (as defined below), the
following terms shall have the following meanings, unless the context otherwise
requires:
(a) "Agent Member" shall mean a member of, or participant in, the
Securities Depository that will act on behalf of a Beneficial Owner of one or
more AMPS or on behalf of a Potential Beneficial Owner.
(b) "Second Amended and Restated Bylaws" shall mean the Second Amended and
Restated Bylaws of the Fund in effect at the time the Registration Statement
relating to the AMPS is declared effective by the Securities and Exchange
Commission, specifying the powers, preferences and rights of the AMPS.
(c) "Auction" shall have the meaning specified in Section 2.1 hereof.
(d) "Auction Procedures" shall mean the procedures as from time to time in
effect for conducting Auctions that are set forth in Section 11.10 of the Second
Amended and Restated Bylaws.
(e) "Authorized Officer" shall mean each Managing Director, Vice President,
Assistant Vice President and Associate of the Auction Agent and every other
officer or employee of the Auction Agent designated as an "Authorized Officer"
for purposes hereof in a written communication from the Auction Agent to the
Fund.
(f) "Broker-Dealer Agreement" shall mean each agreement between the Auction
Agent and a Broker-Dealer substantially in the form attached hereto as
Exhibit A.
(g) "Closing" shall mean the Closing Time as defined in the Purchase
Agreement, dated February __, 2003, among the Fund, PIMCO Advisors Fund
Management LLC, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and the other
underwriters named therein.
(h) "Fund 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 Secretary and each Assistant Treasurer of the Fund and every other
officer or employee of the Fund designated as a "Fund Officer" for purposes
hereof in a notice from the Fund to the Auction Agent.
(i) "Holder" shall be a holder of record of one or more AMPS, listed as
such in the Share Register.
(j) "Settlement Procedures" shall mean the Settlement Procedures attached
as Exhibit A to the Broker-Dealer Agreement.
1.3 Rules of Construction.
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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.
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II. THE AUCTION.
2.1 Purpose; Incorporation by Reference of Auction Procedures and
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Settlement Procedures.
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(a) The Board of Trustees of the Fund 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 the AMPS for the next Dividend Period. Each periodic
operation of such procedures is hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures and in the
Settlement Procedures are incorporated herein by reference in their entirety and
shall be deemed to be a part hereof to the same extent as if such provisions
were set forth fully herein.
2.2 Preparation for Each Auction; Maintenance of Registry of Existing
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Holders.
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(a) As of the date hereof, the Fund shall provide the Auction Agent with a
list of the Broker-Dealers previously approved by the Auction Agent and shall
cause to be delivered to the Auction Agent for execution by the Auction Agent a
Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent
shall keep such list current and accurate and shall indicate thereon, or on a
separate list, the identity of each Existing Holder, if any, whose most recent
Order was submitted by a Broker-Dealer on such list and resulted in such
Existing Holder continuing to hold or purchase AMPS. Not later than five
Business Days prior to any Auction Date for which any change in such list of
Broker-Dealers is to be effective, the Fund shall notify the Auction Agent in
writing of such change and, if any such change is the addition of a
Broker-Dealer to such list, the Fund shall cause to be delivered to the Auction
Agent for execution by the Auction Agent a Broker-Dealer Agreement signed by
such Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer
Agreement with each Broker-Dealer prior to the participation of any such
Broker-Dealer in any Auction.
(b) In the event that the Auction Date for any Auction shall be changed
after the Auction Agent shall have given the notice referred to in clause (vii)
of paragraph (a) of the Settlement Procedures, the Auction Agent, by such means
as the Auction Agent reasonably deems practicable, shall give notice of such
change to the Broker-Dealers not later than the earlier of 9:15 a.m. on the new
Auction Date or 9:15 a.m. on the old Auction Date.
(c) The provisions contained in Section 11.2 of the Second Amended and
Restated Bylaws concerning Special Dividend Periods and the notification of a
Special Dividend Period will be followed by the Fund and, to the extent
applicable, the Auction Agent, and the provisions contained therein are
incorporated herein by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions were set forth
fully herein.
(d) (i) On each Auction Date, the Auction Agent shall determine the
dividend rate and the Maximum Applicable Rate. Not later than 9:30 a.m. on each
Auction Date,
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the Auction Agent shall notify the Fund and the Broker-Dealers of the Maximum
Applicable Rate.
(ii) If the Reference Rate is the applicable "AA" Composite Commercial
Paper Rate and such rate is to be based on rates supplied by Commercial Paper
Dealers and one or more of the Commercial Paper Dealers shall not provide a
quotation for the determination of the applicable "AA" Composite Commercial
Paper Rate, the Auction Agent shall immediately notify the Fund so that the Fund
can determine whether to select a substitute Commercial Paper Dealer or
substitute Commercial Paper Dealers to provide the quotation or quotations not
being supplied by any Commercial Paper Dealer or Commercial Paper Dealers. The
Fund shall promptly advise the Auction Agent of any such selection. If the Fund
does not select any such substitute Commercial Paper Dealer or substitute
Commercial Paper Dealers, then the rates shall be supplied by the remaining
Commercial Paper Dealer or Commercial Paper Dealers.
(e) (i) The Auction Agent shall maintain a current registry of the Existing
Holders of the AMPS who are Broker-Dealers for purposes of each individual
Auction. The Fund shall use commercially reasonable efforts to provide or cause
to be provided to the Auction Agent within ten Business Days following the date
of the Closing a list of the initial Existing Holders of AMPS, and the
Broker-Dealer of each such Existing Holder through which such Existing Holder
purchased such shares. The Auction Agent may rely upon, as evidence of the
identities of the Existing Holders, such list, the results of each Auction and
notices from any Existing Holder, the Agent Member of any Existing Holder or the
Broker-Dealer of any Existing Holder with respect to such Existing Holder's
transfer of any AMPS to another Person.
(ii) In the event of any partial redemption of AMPS, upon notice by the
Fund to the Auction Agent of such partial redemption, the Auction Agent promptly
shall request the Securities Depository to notify the Auction Agent of the
identities of the Agent Members (and the respective numbers of shares) from the
accounts of which shares have been called for redemption and the person or
department at such Agent Member to contact regarding such redemption. At least
two Business Days prior to the Auction preceding the date of redemption, the
Auction Agent shall request each Agent Member so identified to disclose to the
Auction Agent (upon selection by such Agent Member of the Existing Holders whose
shares are to be redeemed) the number of AMPS of each such Existing Holder, if
any, to be redeemed by the Fund, provided that the Auction Agent has been
furnished with the name and telephone number of a person or department at such
Agent Member from which it is to request such information. In the absence of
receiving any such information with respect to an Existing Holder, from such
Existing Holder's Agent Member or otherwise, the Auction Agent may continue to
treat such Existing Holder as having ownership of the number of AMPS shown in
the Auction Agent's registry of Existing Holders.
(iii) The Auction Agent shall register a transfer of the ownership of
AMPS from an Existing Holder to another Existing Holder, or to another Person if
permitted by the Fund, only if (A) such transfer is made pursuant to an Auction
or (B) if such transfer is made other than pursuant to an Auction, the Auction
Agent has been notified of such transfer in writing, in a notice substantially
in the form of Exhibit C to the Broker-Dealer Agreement, by
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such Existing Holder or by the Agent Member of such Existing Holder. The Auction
Agent is not required to accept any notice of transfer delivered for an Auction
unless it is received by the Auction Agent by 12:00 noon of the Auction Date.
The Auction Agent shall rescind a transfer made on the registry of the Existing
Holders of any AMPS if the Auction Agent has been notified in writing, in a
notice substantially in the form of Exhibit D to the Broker-Dealer Agreement, by
the Agent Member or the Broker-Dealer of any Person that (i) purchased any AMPS
and the seller failed to deliver such shares or (ii) sold any AMPS and the
purchaser failed to make payment to such Person upon delivery to the purchaser
of such shares.
(f) The Auction Agent may request that the Broker-Dealers, as set forth in
Section 3.2(b) of the Broker-Dealer Agreement, provide the Auction Agent with a
list of their respective customers that such Broker-Dealers believe are
Beneficial Owners of AMPS based upon inquiries of those persons such
Broker-Dealers reasonably believe are Beneficial Owners as of the most recent
Auction. The Auction Agent shall keep confidential any such information and any
such registry and shall not disclose any such information so provided to any
Person other than the Broker-Dealer that provided such information and the Fund,
provided that the Auction Agent reserves the right to disclose any such
information if it is advised by its counsel that its failure to do so would be
unlawful.
2.3 Auction Schedule.
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Subject to Article 11 of the Second Amended and Restated Bylaws, the
Auction Agent shall normally conduct Auctions weekly (usually Monday for Series
M, Tuesday for Series T, Wednesday for Series W, Thursday for Series TH and
Friday for Series F) in accordance with the schedule set forth below. Such
schedule may be changed by the Auction Agent with the consent of the Fund, which
consent shall not be withheld unreasonably. The Auction Agent shall give notice
of any such change to each Broker-Dealer. Such notice shall be received prior to
the first Auction Date on which any such change shall be effective.
Time Event
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By 9:30 a.m. Auction Agent shall advise the Fund and the Broker-Dealers
of the Reference Rate and the Maximum Applicable Rate as set
forth in Section 2.2(d)(i) hereof.
9:30 a.m. - 1:00 p.m. Auction Agent shall assemble information communicated to it by
Broker-Dealers as provided in Section 11.10(c) of the Second
Amended and Restated Bylaws. Submission Deadline is 1:00 p.m.
Not earlier than 1:00 p.m. Auction Agent shall make determinations pursuant to
Section 11.10(d)(i) of the Second Amended and Restated
Bylaws.
By approximately 3:00 p.m. Auction Agent shall advise the Fund of the results of the Auction
as provided in Section 11.10(d)(ii) of the
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Second Amended and Restated Bylaws.
Submitted Bid Orders and Submitted Sell Orders will be accepted
and rejected in whole or in part and AMPS will be allocated as
provided in Section 11.10(e) of the Second Amended and Restated Bylaws.
Auction Agent shall give notice of the Auction results as
set forth in Section 2.4 hereof.
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 Dividend Payment Date, the Auction
Agent will pay a service charge from funds provided by the Fund 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 7-day 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 first day of such Dividend Period but
excluding the last day thereof) and the denominator of which is 365, times (B)
1/4 of 1%, times (C) $25,000 times (D) the sum of (I) the aggregate number of
AMPS placed by the Broker-Dealer in the applicable Auction that were either (x)
the subject of a Submitted Bid of a Beneficial Owner submitted by the
Broker-Dealer and continued to be held as a result of such submission or (y) the
subject of a Submitted Bid of a Potential Beneficial Owner submitted by the
Broker-Dealer and were purchased as a result of such submission plus (II) the
aggregate number of AMPS subject to valid Hold Orders (determined in accordance
with Section 11.10(b) of the Second Amended and Restated Bylaws) submitted to
the Auction Agent by the Broker-Dealer plus (III) the number of AMPS deemed to
be subject to Hold Orders by Beneficial Owners pursuant to Section 11.10(b) of
the Second Amended and Restated Bylaws that were acquired by the Broker-Dealer
for its own account or were acquired by such Beneficial Owners through the
Broker-Dealer; and (ii) in the case of any Special Dividend Period, the amount
as mutually agreed upon by the Fund and any such Broker-Dealer or
Broker-Dealers, based upon a selling concession that would be applicable to an
underwriting of fixed or variable rate preferred shares with a similar final
maturity or variable rate dividend period, at the commencement of such Special
Dividend Period. For the avoidance of doubt, only one Broker-Dealer shall be
considered to have placed a particular share of AMPS at any particular Auction
for purposes of this Section.
(b) The Fund shall not designate any Person to act as a Broker-Dealer, or
permit an Existing Holder or a Potential Beneficial Owner to participate in
Auctions through any Person other than a Broker-Dealer, without the prior
written approval of the Auction Agent,
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which approval shall not be withheld unreasonably. Notwithstanding the
foregoing, the Fund may designate ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated to act as a Broker-Dealer.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement as set
forth therein if so directed by the Fund, provided that at least one
Broker-Dealer Agreement would be in effect for the AMPS after such termination.
(d) Subject to Section 2.5(b) hereof, the Auction Agent from time to time
shall enter into such Broker-Dealer Agreements as the Fund shall request.
(e) The Auction Agent shall maintain a list of Broker-Dealers.
2.6 Ownership of AMPS and Submission of Bids by the Fund.
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Neither the Fund nor any Affiliate of the Fund may submit an Order in any
Auction except as set forth in the next sentence. Any Broker-Dealer that is an
Affiliate of the Fund may submit Orders in Auctions, but only if such Orders are
not for its own account. For purposes of this Section 2.6, a Broker-Dealer shall
not be deemed to be an Affiliate of the Fund solely because one or more of the
directors, trustees 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 Trustee of the Fund. The Fund shall notify the Auction Agent if the Fund
or, to the best of the Fund's knowledge, any Affiliate of the Fund acquires any
AMPS. Pursuant to the Second Amended and Restated Bylaws of the Fund, the Fund
shall be prohibited from reissuing any AMPS it may acquire. The restrictions in
this Section 2.6 shall in no way limit the activities of the Auction Agent. The
Auction Agent shall have no duty or liability with respect to enforcement of
this Section 2.6.
2.7 Access to and Maintenance of Auction Records.
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The Auction Agent shall afford to the Fund and its agents, independent
public accountants and counsel access at reasonable times during normal business
hours to review and make extracts or copies (at the Fund's sole cost and
expense) of all books, records, documents and other information concerning the
conduct and results of Auctions, provided that any such agent, accountant or
counsel shall furnish the Auction Agent with a letter from the Fund requesting
that the Auction Agent afford such person access. The Auction Agent shall
maintain records relating to any Auction in accordance with applicable rules and
regulations of the Securities and Exchange Commission (the "Commission") for a
period of at least six years after such Auction, and such records, in reasonable
detail, shall accurately and fairly reflect the actions taken by the Auction
Agent hereunder. The Fund agrees to keep confidential any information regarding
the customers of any Broker-Dealer received from the Auction Agent in connection
with this Agreement or any Auction, and shall not disclose such information or
permit the disclosure of such information without the prior written consent of
the applicable Broker-Dealer to anyone except such agent, counsel or accountant
engaged to audit or review the results of Auctions as permitted by this Section
2.7. The Fund reserves the right, however, to disclose any such information if
it is advised by its counsel that its failure to do so would (i) be unlawful or
(ii) expose it to liability, unless the Broker-Dealer shall have offered
indemnification satisfactory to the Fund. Any such agent, accountant or counsel,
before having access to such
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information, shall agree to keep such information confidential and not to
disclose such information or permit disclosure of such information without the
prior written consent of the applicable Broker-Dealer, provided that such agent,
accountant or counsel may reserve the right to disclose any such information if
it is advised by its counsel that its failure to do so would (i) be unlawful or
(ii) expose it to liability, unless the Broker-Dealer shall have offered
indemnification satisfactory to such agent, accountant or counsel.
2.8 Auction Procedures.
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The provisions contained in Section 11.10 of the Amended and Restated
Bylaws concerning Auction Procedures will be followed by the Fund 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.
III. THE AUCTION AGENT AS PAYING AGENT.
3.1 The Paying Agent.
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As noted above, the Board of Trustees of the Fund has adopted resolutions
appointing Deutsche Bank Trust Company Americas as the Paying Agent. The Paying
Agent hereby accepts such appointment and agrees to act in accordance with its
standard procedures and the provisions of the Second Amended and Restated Bylaws
which are specified herein with respect to the AMPS and as set forth in this
Section 3.
3.2 The Fund's Notices to the Paying Agent.
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Whenever any AMPS are to be redeemed, the Fund shall mail a Notice of
Redemption by first-class mail, postage prepaid, to each Holder of AMPS being
redeemed and to the Paying Agent pursuant to the Second Amended and Restated
Bylaws.
3.3 The Fund to Provide Funds for Dividends and Redemptions.
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(a) Not later than 12:00 noon on each Dividend Payment Date, the Fund shall
deposit with the Paying Agent an aggregate amount of Federal Funds or similar
same-day funds equal to the declared dividends to be paid to Holders on such
Dividend Payment Date and shall give the Paying Agent irrevocable instructions
to apply such funds to the payment of such dividends on such Dividend Payment
Date.
(b) If the Fund shall give a Notice of Redemption, then by 12:00 noon on
the date fixed for redemption, the Fund shall deposit in trust with the Paying
Agent an aggregate amount of Federal Funds or similar same-day funds sufficient
to redeem such AMPS called for redemption and shall give the Paying Agent
irrevocable instructions and authority to pay the redemption price to the
Holders of AMPS called for redemption upon surrender of the certificate or
certificates therefor.
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3.4 Disbursing Dividends and Redemption Price.
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After receipt of the Federal Funds or similar same-day funds and
instructions from the Fund described in Section 3.3 above, the Paying Agent
shall pay to the Holders (or former Holders) entitled thereto (i) on each
corresponding Dividend Payment Date, dividends on the AMPS, and (ii) on any date
fixed for redemption, the redemption price of any AMPS called for redemption.
The amount of dividends for any Dividend Period to be paid by the Paying Agent
to Holders will be determined by the Fund as set forth in Section 11.2 of the
Second Amended and Restated Bylaws. The redemption price to be paid by the
Paying Agent to the Holders of any AMPS called for redemption will be determined
as set forth in Section 11.4 of the Second Amended and Restated Bylaws.
IV. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
4.1 Original Issue of Share Certificates.
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On the Date of Original Issue for any series of AMPS, one certificate
for each series of AMPS shall be issued by the Fund and registered in the name
of Cede & Co., as nominee of the Securities Depository, and countersigned by the
Paying Agent.
4.2 Registration of Transfer or Exchange of Shares.
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Except as provided in this Section 4.2, each series of AMPS shall be
registered solely in the name of the Securities Depository or its nominee. If
there is no Securities Depository, at the Fund's option and upon its receipt of
such documents as it deems appropriate, any AMPS may be registered in the Stock
Register in the name of the Beneficial Owner thereof, and such Beneficial Owner
thereupon will be entitled to receive certificates therefor and required to
deliver certificates thereof upon transfer or exchange thereof. If the
certificate or certificates for AMPS are not held by the Securities Depository
or its nominee, payment will be made in same-day funds to the Auction Agent
against delivery of such certificates.
4.3 Removal of Legend.
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Any request for removal of a legend indicating a restriction on
transfer from a certificate evidencing AMPS shall be accompanied by an opinion
of counsel stating that such legend may be removed and such shares may be
transferred free of the restriction described in such legend, said opinion to be
delivered under cover of a letter from a Fund Officer authorizing the Paying
Agent to remove the legend on the basis of said opinion.
4.4 Lost, Stolen or Destroyed Share Certificates.
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The Paying Agent shall, at the sole expense of the Fund, 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 Fund and by the Paying Agent, subject at all times to
provisions of law and the Second Amended and Restated Bylaws governing such
matters and resolutions adopted by the Fund with respect to lost, stolen or
destroyed securities. The Paying Agent may, at the sole expense of the Fund,
issue new
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certificates in exchange for and upon the cancellation of mutilated
certificates. Any request by the Fund to the Paying 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 Fund to the Paying Agent that such issuance
will comply with provisions of applicable law and the Second Amended and
Restated Bylaws and the resolutions of the Fund.
4.5 Disposition of Canceled Certificates; Record Retention.
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The Paying Agent shall retain share certificates which have been
canceled in transfer or in exchange and accompanying documentation in accordance
with applicable rules and regulations of the Commission for at least six
calendar years from the date of such cancellation. The Paying Agent, upon
written request by the Fund, shall afford to the Fund, its agents and counsel
access at reasonable times during normal business hours to review and make
extracts or copies (at the Fund's sole cost and expense) of such certificates
and accompanying documentation. Upon the expiration of this six-year period, the
Paying Agent, upon written request by the Fund, shall deliver to the Fund the
canceled certificates and accompanying documentation. The Paying Agent also
shall undertake to furnish to the Commission, upon demand and after notice to
and authorization by the Fund of such demand, either at its principal office or
at any regional office, complete, correct and current hard copies of any and all
such records. Thereafter, such records shall not be destroyed by the Fund
without the approval of the Paying Agent, which approval shall not be withheld
unreasonably, but will be safely stored for possible future reference.
4.6 Share Register.
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The Paying Agent shall maintain the share register, which shall contain a
list of the Holders, the number of shares held by each Holder and the address of
each Holder. The Paying Agent shall record in the share register any change of
address of a Holder upon notice by such Holder. In case of any written request
or demand for the inspection of the share register or any other books of the
Fund in the possession of the Paying Agent, the Paying Agent will notify the
Fund and secure instructions as to permitting or refusing such inspection. The
Paying Agent reserves the right, however, to exhibit the share register or other
records to any person in case it is advised by its counsel that its failure to
do so would be unlawful.
4.7 Return of Funds.
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Any funds deposited with the Paying Agent by the Fund for any reason under
this Agreement, including for the payment of dividends or the redemption of
AMPS, that remain with the Paying Agent after 90 days shall be repaid to the
Fund upon written request by the Fund. Such funds, while deposited with the
Auction Agent, will be held in trust for the payment of the applicable dividend,
redemption price or, as may be applicable under the Second Amended and Restated
Bylaws, other charges.
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V. REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties of the Fund.
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The Fund represents and warrants to the Auction Agent that:
(i) the Fund has been duly organized and is validly existing as an
unincorporated voluntary association under, and by virtue of, the laws of The
Commonwealth of Massachusetts and has full power to execute and deliver this
Agreement and to authorize, create and issue the AMPS;
(ii) the Fund is registered with the Commission under the 1940 Act as a
closed-end, diversified, management investment company;
(iii) this Agreement has been duly and validly authorized, executed and
delivered by the Fund and constitutes the legal, valid and binding obligation of
the Fund, enforceable against the Fund in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights, and to general equitable principles;
(iv) the form of the certificates evidencing the AMPS complies with all
applicable laws of The Commonwealth of Massachusetts;
(v) the AMPS have been duly and validly authorized by the Fund and, upon
completion of the initial sale of the AMPS and receipt of payment therefor, will
be validly issued by the Fund, fully paid and nonassessable;
(vi) at the time of the offering of the AMPS, the shares offered will be
registered under the Securities Act and no further action by or before any
governmental body or authority of the United States or of any state thereof is
required in connection with the execution and delivery of this Agreement or will
be required in connection with the issuance of the AMPS, except such action as
required by applicable state securities laws;
(vii) the execution and delivery of this Agreement and the issuance and
delivery of the AMPS 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 of Trust, any order or decree of any court or public authority
having jurisdiction over the Fund or any mortgage, indenture, contract,
agreement or undertaking to which the Fund is a party or by which it is bound,
the effect of which conflict, violation, default or breach would be material to
the Fund; and
(viii) no taxes are payable upon or in respect of the execution of this
Agreement or will be payable upon or in respect of the issuance of the AMPS.
5.2 Representations and Warranties of the Auction Agent.
----------------------------------------------------
The Auction Agent represents and warrants to the Fund that:
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(i) The Auction Agent is duly organized and is validly existing as a
banking corporation in good standing under the laws of the State of New York and
has the corporate power to enter into and perform its obligations under this
Agreement; and
(ii) this Agreement has been duly and validly authorized, executed and
delivered by the Auction Agent and constitutes the legal, valid and binding
obligation of the Auction Agent, enforceable against the Auction Agent in
accordance with its terms, subject only to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equitable principles.
VI. THE AUCTION AGENT.
6.1 Duties and Responsibilities.
(a) The Auction Agent is acting solely as agent for the Fund hereunder and
owes no fiduciary duties to any Person except as provided by this Agreement.
(b) The Auction Agent undertakes to perform such duties and only such
duties as are set forth specifically in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the Auction
Agent shall not be liable for any action taken, suffered or omitted, or for any
error of judgment made, by it in the performance of its duties under this
Agreement.
6.2 Rights of the Auction Agent.
----------------------------
(a) The Auction Agent may rely upon, and shall be protected in acting or
refraining from acting in accordance with, any communication authorized by this
Agreement and any proper written instruction, notice, request, direction,
consent, report, certificate, share certificate or other instrument, paper or
document reasonably believed by it to be genuine and appropriately authorized.
The Auction Agent shall not be liable for acting upon any telephone
communication authorized by this Agreement which the Auction Agent reasonably
believes in good faith to have been given by the Fund or by a Broker-Dealer. The
Auction Agent may record telephone communications with the Fund or with the
Broker-Dealers or with both, but agrees not to destroy any such recordings
except in accordance with its usual and customary practices and further to
provide the Fund with a copy of any such recording upon request.
(b) The Auction Agent may consult with outside independent counsel of its
choice, and the written advice of such outside independent counsel, if addressed
to both the Auction Agent and the Fund, 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 reasonable reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or risk its
own funds or otherwise incur or become exposed to financial liability in the
performance of its duties hereunder.
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(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys.
6.3 Compensation, Expenses and Indemnification.
(a) The Fund shall pay to the Auction Agent from time to time reasonable
compensation for all services rendered by it under this Agreement and under the
Broker-Dealer Agreements as shall be set forth in a separate writing signed by
the Fund and the Auction Agent, subject to adjustments if the AMPS no longer are
held of record by the Securities Depository or its nominee or if there shall be
such other change as shall increase or decrease materially the Auction Agent's
obligations hereunder or under the Broker-Dealer Agreements.
(b) The Fund shall reimburse the Auction Agent upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Auction
Agent in accordance with any provision of this Agreement and of the
Broker-Dealer Agreements (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any expense, disbursement or
advance attributable to its negligence or bad faith upon submission to the Fund
of reasonable documentation thereof.
(c) The Fund shall indemnify the Auction Agent for, and hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Auction Agent arising out of or in connection with its agency
under this Agreement and under the Broker-Dealer Agreements, including the costs
and expenses of defending itself against any claim of liability in connection
with its exercise or performance of any of its duties hereunder and thereunder,
except such as may result from its negligence or bad faith.
VII. MISCELLANEOUS.
7.1 Term of Agreement.
------------------
(a) The term of this Agreement is unlimited unless it shall be terminated
as provided in this Section 7.1. The Fund may terminate this Agreement at any
time by so notifying the Auction Agent. The Auction Agent may terminate this
Agreement upon prior notice to the Fund on the date specified in such notice,
which date shall be no earlier than 60 days after delivery of such notice.
(b) Except as otherwise provided in this Section 7.1(b), the respective
rights and duties of the Fund and the Auction Agent under this Agreement shall
cease upon termination of this Agreement. The Fund's representations,
warranties, covenants and obligations to the Auction Agent under Sections 5.1
and 6.3 hereof shall survive the termination hereof. The Auction Agent's
representations, warranties, covenants and obligations under Section 6.1 shall
also survive the termination hereof. Upon termination of this Agreement, the
Auction Agent shall (i) resign as Auction Agent under the Broker-Dealer
Agreements, (ii) at the Fund's request, deliver promptly to the Fund or to
another authorized party copies of all books and records maintained by it in
connection with its duties hereunder, and (iii) at the request of the Fund,
transfer promptly to the Fund or to any successor auction agent any funds
deposited by the Fund with the Auction Agent (whether in its capacity as Auction
Agent or as Paying Agent) pursuant
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to this Agreement which have not been distributed previously by the Auction
Agent in accordance with this Agreement.
7.2 Communications.
---------------
Except for (i) communications authorized to be made by telephone pursuant
to this Agreement or the Auction Procedures and (ii) communications in
connection with Auctions (other than those expressly required to be in writing),
all notices, requests and other communications to any party hereunder shall be
in writing (including telecopy or similar writing) and shall be given to such
party at its address or telecopier number set forth below:
If to the Fund, PIMCO Corporate Opportunity Fund
addressed to: c/o PIMCO Advisory Services
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Auction Agent, Deutsche Bank Trust Company Americas
addressed to: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No. ▇▇▇-▇▇▇-▇▇▇▇
Telephone No. ▇▇▇-▇▇▇-▇▇▇▇
or such other address or telecopier number as such party hereafter may specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Fund by a Fund Officer and on
behalf of the Auction Agent by an Authorized Officer.
7.3 Entire Agreement.
-----------------
This Agreement contains the entire agreement between the parties relating
to the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or implied,
between the parties relating to the subject matter hereof, except for 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 Fund, the Auction Agent and their respective successors and assigns, any
benefit of any legal or equitable right, remedy or claim hereunder.
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7.5 Amendment; Waiver.
------------------
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
7.6 Successors and Assigns.
-----------------------
This Agreement shall be binding upon, inure to the benefit of and be
enforceable by, the respective successors and permitted assigns of each of the
Fund and the Auction Agent. This Agreement may not be assigned by either party
hereto absent the prior written consent of the other party, which consent shall
not be withheld unreasonably.
7.7 Severability.
-------------
If any clause, provision or section hereof shall be ruled invalid or
unenforceable by any court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
7.8 Execution in Counterparts.
--------------------------
This Agreement may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
7.9 Governing Law.
--------------
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.
7.10 Limitation of Liability.
------------------------
The Fund's Agreement and Declaration of Trust is on file with the Secretary
of State of The Commonwealth of Massachusetts. This Agreement is executed on
behalf of the Fund by the Fund's officers as officers and not individually, and
the obligations imposed upon the Fund by this Agreement are not binding upon any
of the Fund's Trustees, officers or shareholders individually but are binding
only upon the assets and property of the Fund.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
PIMCO CORPORATE OPPORTUNITY FUND
By:
---------------------------
Name:
Title:
DEUTSCHE BANK TRUST
COMPANY AMERICAS
By:
---------------------------
Name:
Title:
EXHIBIT A
FORM OF BROKER-DEALER AGREEMENT
-------------------------------