PIONEER MUNICIPAL HIGH INCOME ADVANTAGE TRUST
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AUCTION AGENCY AGREEMENT
dated as of [ ], 2003
Relating to
Auction Preferred Shares
Series A and Series B
Of
PIONEER MUNICIPAL HIGH INCOME ADVANTAGE 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 [ ], 2003
is between Pioneer Municipal High Income Advantage Trust (the "Fund") and
Deutsche Bank Trust Company Americas, a New York banking corporation.
The Fund proposes to issue an aggregate of [ ] preferred shares, par
value $0.0001 per share, liquidation preference $25,000 per share, designated as
Auction Preferred Shares, Series A and Auction Preferred Shares, Series B (the
"Preferred Shares"), pursuant to the Fund's Statement of Preferences of Auction
Preferred Shares (as defined below).
The Fund desires that Deutsche Bank Trust Company Americas perform
certain duties as agent in connection with each Auction (as defined below) of
Preferred Shares (in such capacity, the "Auction Agent"), and as the transfer
agent, registrar, dividend paying agent and redemption agent with respect to the
Preferred Shares (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 premises 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 STATEMENT OF PREFERENCES.
Capitalized terms used herein but not defined herein shall have the
respective meanings specified in the Statement of Preferences.
1.2 CERTAIN DEFINED TERMS.
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 the Securities Depository that will
act on behalf of a Beneficial Owner of one or more Preferred Shares or on behalf
of a Potential Beneficial Owner.
(b) "Auction" shall have the meaning specified in Section 2.1 hereof.
(c) "Auction Procedures" shall mean the procedures as from time to time in
effect for conducting Auctions that are set forth in Part II of the Statement of
Preferences.
(d) "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 assigned to its Corporate Trust &
Agency Services and designated as an "Authorized Officer" for purposes hereof in
a written communication from the Auction Agent to the Fund.
(e) "Broker-Dealer Agreement" shall mean each agreement between the Auction
Agent and a Broker-Dealer substantially in the form attached hereto as EXHIBIT
A.
(f) "Closing" shall mean the date the Fund consummates the transactions for the
issuance and sale of the Preferred Shares.
(g) "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.
(h) "Holder" shall be a holder of record of one or more Preferred Shares, listed
as such in the Share Register.
(i) "Settlement Procedures" shall mean the Settlement Procedures attached as
Exhibit A to the Broker-Dealer Agreement.
(j) "Statement of Preferences" shall mean the Statement of Preferences of
Auction Preferred Shares of the Fund in effect at the time the Registration
Statement relating to the Preferred Shares is declared effective by the U.S.
Securities and Exchange Commission (the "Commission") or such later date on
which the Preferred Shares are issued, specifying the powers, preferences and
rights of the Preferred Shares.
1.3 RULES OF CONSTRUCTION.
Unless the context or use indicates another or different meaning or
intent, the following rules shall apply to the construction of this Agreement:
(a) Words importing the singular number shall include the plural number and vice
versa.
(b) The captions and headings herein are solely for convenience of reference and
shall not constitute a part of this Agreement nor shall they affect its meaning,
construction or effect.
(c) The words "hereof," "herein," "hereto" and other words of similar import
refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to New York City
time.
II. THE AUCTION.
2.1 PURPOSE; INCORPORATION BY REFERENCE OF AUCTION PROCEDURES AND
SETTLEMENT PROCEDURES.
(a) The Board of 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 Preferred Shares for the next Dividend Period. Each
periodic operation of such procedures is hereinafter referred to as an
"Auction."
(b) All of the provisions contained in the Auction Procedures and in the
Settlement Procedures are incorporated herein by reference in their entirety and
shall be deemed to be a part 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
HOLDERS.
(a) Except as provided below, whenever the Fund is aware that it will include
any net capital gains or other income subject to regular federal income taxes
("Taxable Income") in any dividend on any Preferred Shares, the Fund will notify
the Auction Agent of the estimated amount of Taxable Income to be so included in
the dividend for the next succeeding Dividend Period at least five Business Days
prior to the Auction Date on which the Applicable Rate for such dividend is to
be established. The Auction Agent shall promptly notify the Broker-Dealers of
the estimated amount of such Taxable Income in a dividend on any Preferred
Shares without giving advance notice thereof to the Auction Agent if the Fund
increases the dividend by an additional amount calculated as if such income were
subject to a Retroactive Taxable Allocation and the additional amount were a
Gross-up Dividend (as such terms are defined in the Statement of Preferences),
provided that the Fund will notify the Auction Agent of the additional amount to
be included in such dividend at least five Business Days prior to the applicable
Dividend Payment Date. The Fund shall not be required to pay Gross-up Dividends
with respect to any net capital gain or other taxable income determined by the
Internal Revenue Service to be allocable in a manner different from that
allocated by the Fund.
(b) 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 Preferred Shares. Not later than
five Business Days prior to any Auction Date for which any change in such list
of Broker-Dealers is to be effective, the 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.
(c) 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.
(d) The provisions contained in Section 3 of Part I of the Statement of
Preference 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.
(e) (i) On each Auction Date, the Auction Agent shall determine the Maximum
Applicable Rate. Not later than 9:30 a.m. on each Auction Date, 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" Financial 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" Financial Composite
Commercial Paper Rate, the Auction Agent immediately shall 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 promptly shall 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.
(f) (i) The Auction Agent shall maintain a current registry of the Existing
Holders of the Preferred Shares 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 Preferred Shares, 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 Preferred Shares to another Person.
(ii) In the event of any partial redemption of Preferred Shares, 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 Preferred Shares 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 Preferred Shares
shown in the Auction Agent's registry of Existing Holders.
(iii) The Auction Agent shall register a transfer of the ownership of Preferred
Shares 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 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 3:00 p.m. on the Business Day
preceding the applicable Auction Date. The Auction Agent shall rescind a
transfer made on the registry of the Existing Holders of any Preferred Shares if
the Auction Agent has been notified in writing, in a notice substantially in the
form of Exhibit D to the Broker-Dealer Agreement, by the Agent Member or the
Broker-Dealer of any Person that (i) purchased any Preferred Shares and the
seller failed to deliver such shares or (ii) sold any Preferred Shares and the
purchaser failed to make payment to such Person upon delivery to the purchaser
of such shares.
(g) The Auction Agent may request that the Broker-Dealers, as set forth in
Section 3.2(d) of the Broker-Dealer Agreements, provide the Auction Agent with a
list of their respective customers that such Broker-Dealers believe are
Beneficial Owners of Preferred Shares. The Auction Agent shall keep confidential
any such information and shall not disclose any such information so provided to
any Person other than the relevant Broker-Dealer and the 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.
Subject to Section 3 of Part II of the Statement of Preferences, the
Auction Agent shall normally conduct Auctions weekly (usually Tuesday for Series
A and Wednesday for Series B) 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
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(e)(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 2 of the Auction
Procedures. Submission deadline is 1:00
p.m.
Not earlier than 1:00 p.m. Auction Agent shall make determinations
pursuant to Section 3(a) of the Auction
Procedures.
By approximately 3:00 p.m. Auction Agent shall advise the Fund of
the results of the Auction as provided
in Section 3(b) of the Auction
Procedures. Submitted Bid Orders and
Submitted Sell Orders will be accepted
and rejected in whole or in part and
Preferred Shares will be allocated as
provided in Section 4 of the Auction
Procedures.
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 Preferred Shares by telephone or through its Auction Processing
System as set forth in paragraph (a) of the Settlement Procedures.
In the event that the Fund has not notified the Auction Agent of the
inclusion of Taxable Income in the dividend for the Dividend Period to which
such Auction relates prior to the submission of Order by the Broker-Dealer but
elects in accordance with the Statement of Preferences to include an additional
amount in the dividend with respect to such Dividend Period as an adjustment
with respect to such Taxable Income, the Auction Agent shall notify the
Broker-Dealer of such additional amount and the inclusion of Taxable Income in
such dividend and the Broker-Dealer will notify any Beneficial Owner or
Potential Beneficial Owner who will hold Shares as a result of such Auction of
such additional amount and Taxable Income.
2.5 BROKER-DEALERS.
(a) Not later than 3:00 p.m. on each Dividend Payment Date, the Auction Agent
after each Auction will pay a service charge from funds provided by the Fund to
each Broker-Dealer on the basis of the purchase price of Preferred Shares 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 Preferred Shares 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 Preferred Shares subject to valid Hold Orders
(determined in accordance with Section 1 of the Auction Procedures) submitted to
the Auction Agent by the Broker-Dealer plus (III) the number of Preferred Shares
deemed to be subject to Hold Orders by Beneficial Owners pursuant to Section 1
of the Auction Procedures 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 determined by
mutual consent of 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, respectively, 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 Preferred Share at any particular Auction for
purposes of this Section 2.5(a).
(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, which approval shall not be withheld
unreasonably. Notwithstanding the foregoing, the Fund may designate an Affiliate
or UBS Securities LLC 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 in writing, provided that at least one
Broker-Dealer Agreement would be in effect for the APS 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 in writing.
(e) The Auction Agent shall maintain a list of Broker-Dealers.
2.6 OWNERSHIP OF PREFERRED SHARES AND SUBMISSION OF BIDS BY THE FUND AND
ITS AFFILIATES.
Neither the Fund nor any Affiliate may submit an Order in any Auction,
except that an Affiliate that is a Broker-Dealer may submit an Order. The Fund
shall notify the Auction Agent if the Fund or, to the best of the Fund's
knowledge, any Affiliate becomes a Beneficial Owner of any Preferred Shares.
Pursuant to the Statement of Preferences of the Fund, the Fund and its
Affiliates shall be prohibited from reissuing and its Affiliates (other than an
Underwriter) will be prohibited from transferring (other than to the Fund or
pursuant to an Auction) any Preferred Shares they 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.
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 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, accountant or counsel engaged to
audit or review the results of Auctions as permitted by this Section 2.7. The
Fund reserves 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 the Fund. Any such agent, accountant or counsel, before having
access to such information, shall agree to keep such information confidential
and not to disclose such information or permit disclosure of such information
without the prior written consent of the applicable Broker-Dealer, provided that
such agent, accountant or counsel may reserve the right to disclose any such
information if it is 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.
The provisions contained in the 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.
The Board of Trustees of the Fund has adopted resolutions appointing
Deutsche Bank Trust Company Americas as Auction Agent and dividend paying agent
(in such capacity, 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 Statement of Preferences which are specified herein with
respect to the Preferred Shares and as set forth in this Section 3.
3.2 THE FUND'S NOTICES TO THE PAYING AGENT.
Whenever any Preferred Shares are to be redeemed, the Fund shall mail a
Notice of Redemption by first-class mail, postage prepaid, to each Holder of
Preferred Shares being redeemed and to the Paying Agent pursuant to the
Statement of Preferences.
3.3 THE FUND TO PROVIDE FUNDS FOR DIVIDENDS AND REDEMPTIONS.
(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 Preferred Shares called for redemption and shall give the Paying
Agent irrevocable instructions and authority to pay the redemption price to the
Holders of Preferred Shares called for redemption upon surrender of the
certificate or certificates therefor.
3.4 DISBURSING DIVIDENDS AND REDEMPTION PRICE.
After receipt of the Federal Funds or similar same-day funds and
instructions from the 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 Preferred Shares, and (ii)
on any date fixed for redemption, the redemption price of any Preferred Shares
called for redemption. The amount of dividends for any Dividend Period to be
paid by the Paying Agent to Holders will be determined by the Fund as set forth
in Section 2 of Part I of the Statement of Preferences. The redemption price to
be paid by the Paying Agent to the Holders of any Preferred Shares called for
redemption will be determined as set forth in Section 9 of Part I of the
Statement of Preferences.
IV. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
4.1 ORIGINAL ISSUE OF SHARE CERTIFICATES.
On the Date of Original Issue for any Preferred Share, one certificate
for each series of Preferred Shares 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.
Except as provided in this Section 4.2, the shares of each series of
Preferred Shares 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
Preferred Shares may be registered in the Share 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 or
upon transfer or exchange thereof. If the certificate or certificates for
Preferred Shares 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.
Any request for removal of a legend indicating a restriction on
transfer from a certificate evidencing Preferred Shares 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.
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, the Statement of Preferences 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
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 Statement of Preferences
and resolutions of the Fund.
4.5 DISPOSITION OF CANCELED CERTIFICATES; RECORD RETENTION.
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 at the sole expense of the Fund,
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.
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 written 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.
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 Preferred Shares, 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 Statement of
Preferences, other charges.
V. REPRESENTATIONS AND WARRANTIES.
5.1 REPRESENTATIONS AND WARRANTIES OF THE FUND.
The Fund represents and warrants to the Auction Agent that:
(i) the Fund has been duly organized and is validly existing as an statutory
business trust under and by virtue of the laws of the State of Delaware and has
full power to execute and deliver this Agreement and to authorize, create and
issue the Preferred Shares;
(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 Preferred Shares complies with
all applicable laws of the State of Delaware;
(v) the Preferred Shares have been duly and validly authorized by the Fund and,
upon completion of the initial sale of the Preferred Shares 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 Preferred Shares, the shares offered
will be 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 this Agreement or will be required in connection with the issuance of the
Preferred Shares, except such action as required by applicable state securities
laws;
(vii) the execution and delivery of this Agreement and the issuance and delivery
of the Preferred Shares do not and will not conflict with, violate or result in
a breach of the terms, conditions or provisions of, or constitute a default
under, the 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 Preferred
Shares.
5.2 REPRESENTATIONS AND WARRANTIES OF THE AUCTION AGENT.
The Auction Agent represents and warrants to the Fund that:
(i) The Auction Agent is duly organized and is validly existing as a banking
corporation in good standing under the laws of the State of New York and has the
corporate power to enter into and perform its obligations under this Agreement;
and
(ii) this Agreement has been duly and validly authorized, executed and delivered
by the Auction Agent and constitutes the legal, valid and binding obligation of
the Auction Agent, enforceable against the Auction Agent in accordance with its
terms, subject only to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equitable principles.
VI. THE AUCTION AGENT.
6.1 DUTIES AND RESPONSIBILITIES.
(a) The Auction Agent is acting solely as agent for the 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 by it, 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.
(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 Preferred Shares
no longer are held of record by the Securities Depository or its nominee or if
there shall be such other change as shall increase or decrease materially the
Auction Agent's obligations hereunder or under the Broker-Dealer Agreements.
(b) The 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 the Auction Agent's 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, provided that, if any Preferred Shares remain
outstanding, the Fund shall have entered into an agreement with a successor
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. If the Auction Agent terminates this
Agreement while any Preferred Shares remain outstanding, the Fund shall use its
best efforts to enter into an agreement with a successor auction agent
containing substantially the same terms and conditions as this Agreement.
(b) Except as otherwise provided in this 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 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 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, Pioneer Municipal High Income Advantage Trust
addressed to: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
If to the Auction Agent, Deutsche Bank Trust Company Americas
addressed to: Corporate Trust & Agency Services
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ -- 27th Floor
Mail Stop NYC60-2715
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier 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.
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.
[Signature pages follow.]
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.
PIONEER MUNICIPAL HIGH INCOME ADVANTAGE
TRUST
By:
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
Name:
Title:
EXHIBIT A
FORM OF BROKER-DEALER AGREEMENT
PIONEER MUNICIPAL HIGH INCOME ADVANTAGE TRUST
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Auction Agent
---------------------------
BROKER-DEALER AGREEMENT
dated as of , 2003
Relating to
Auction Preferred Shares
Series A and B
of
PIONEER MUNICIPAL HIGH INCOME ADVANTAGE TRUST
---------------------------
[BROKER-DEALER]
BROKER-DEALER AGREEMENT
This Broker-Dealer Agreement dated as of October ___, 2003 is between
Deutsche Bank Trust Company Americas, a New York banking corporation (the
"Auction Agent") (not in its individual capacity, but solely as agent of Pioneer
Municipal High Income Advantage Trust (the "Fund"), pursuant to authority
granted to it in the Auction Agency Agreement dated as of October ___, 2003
between the Fund and the Auction Agent (the "Auction Agency Agreement") and
(together with its successors and assigns, "BD").
The Fund proposes to issue an aggregate of [ ] preferred shares, par
value $0.0001 per share, liquidation preference $25,000 per share, designated as
Auction Preferred Shares, Series A and Auction Preferred Shares, Series B (the
"Preferred Shares"), pursuant to the Fund's Statement of Preferences of
Preferences of Auction Preferred Shares (as defined below).
As provided in and subject to the Fund's Statement of Preferences, for
each series of Preferred Shares then outstanding, the Applicable Rate for
Preferred Shares for each Dividend Period subsequent to the Initial Dividend
Period shall be equal to the rate per annum that results from an Auction for
Outstanding Preferred Shares on the respective Auction Date. 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, and
pursuant to Section 2.5 of the Auction Agency Agreement, the Fund has requested
and directed the Auction Agent to execute and deliver this Agreement.
The Auction Procedures require the participation of one or more
Broker-Dealers.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Auction Agent and BD agree as follows:
VIII. DEFINITIONS AND RULES OF CONSTRUCTION.
8.1 TERMS DEFINED BY REFERENCE TO THE THIRD AMENDED AND RESTATED BYLAWS.
Capitalized terms used herein but not defined herein shall have the
respective meanings specified in the Statement of Preferences.
8.2 TERMS DEFINED HEREIN.
As used herein and in the Settlement Procedures (as defined below), the
following terms shall have the following meanings, unless the context otherwise
requires:
(a) "Auction" shall have the meaning specified in Section 2.1 of the Auction
Agency Agreement.
(b) "Auction Procedures" shall mean the procedures for conducting Auctions that
are set forth in Part II of the Statement of Preferences.
(c) "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 assigned to its Corporate Trust &
Agency Services and designated as an "Authorized Officer" for purposes of this
Agreement in a communication to BD.
(d) "BD Officer" shall mean each officer or employee of BD designated as a "BD
Officer" for purposes of this Agreement in a communication to the Auction Agent.
(e) "Broker-Dealer Agreement" shall mean this Agreement and any substantially
similar agreement between the Auction Agent and a Broker-Dealer.
(f) "Settlement Procedures" shall mean the Settlement Procedures attached hereto
as Exhibit A.
(g) "Statement of Preferences" shall mean the Statement of Preferences of
Auction Preferred Shares in effect at the time the Registration Statement
relating to the Preferred Shares is declared effective by the Securities and
Exchange Commission or at such later date when the Preferred Shares are issued,
specifying the powers, preferences and rights of the Preferred Shares.
8.3 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) Sections I and III hereof shall be read in conjunction with Part II of the
Statement of Preferences and in the event of any conflict with the
Statement of Preferences, then the Statement of Preferences shall take
precedence.
IX. NOTIFICATION OF DIVIDEND.
The provisions contained in Section 3 of Part I of the Statement of
Preferences concerning the notification of a Special Dividend Period will be
followed by the Auction Agent and BD, and the provisions contained therein are
incorporated herein by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions were set forth
fully herein.
X. THE AUCTION.
10.1 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 Preferred Shares, for each 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 the Settlement
Procedures are incorporated herein by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
were set forth fully herein.
(c) BD agrees to act as, and assumes the obligations of and limitations and
restrictions placed upon, a Broker-Dealer under this Agreement. BD understands
that other Persons meeting the requirements specified in the definition of
"Broker-Dealer" contained in the Statement of Preferences may execute a
Broker-Dealer Agreement and participate as Broker-Dealers in Auctions.
(d) BD and other Broker-Dealers may participate in Auctions for their own
accounts. However, the Fund, by notice to BD and all other Broker Dealers, may
prohibit all Broker-Dealers from submitting Bids in Auctions for their own
accounts, provided that Broker-Dealers may continue to submit Hold Orders and
Sell Orders.
10.2 PREPARATION FOR EACH AUCTION.
(a) If prior to any Auction Date the Auction Agent advises the Broker-Dealer
that a portion of the dividend with respect to the next succeeding Dividend
Period will include taxable Income (as such term is defined in the Statement of
Preferences), the Broker Dealer will advise the Beneficial Owners and Potential
Holders of the estimated portion of such dividend that will constitute Taxable
Income.
(b) Not later than 9:30 a.m. on each Auction Date for the Preferred Shares, the
Auction Agent shall advise BD by telephone or other electronic means of
communication acceptable to the parties of the Reference Rate and the Maximum
Applicable Rate in effect on such Auction Date.
(c) In the event that the Auction Date for any Auction shall be changed after
the Auction Agent has given the notice referred to in 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 BD 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. Thereafter, BD promptly shall notify customers of BD that BD
believes are Beneficial Owners of Preferred Shares of such change in the Auction
Date.
(d) The Auction Agent from time to time may, but shall not be required to,
request BD to provide it with a list of the respective customers BD believes are
Beneficial Owners of Preferred Shares. BD shall comply with any such request,
and 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 Fund; and
such information shall not be used by the Auction Agent or its officers,
employees, agents or representatives for any purpose other than such purposes as
are described herein. The Auction Agent shall transmit any list of customers BD
believes are Beneficial Owners of Preferred Shares and information related
thereto only to its officers, employees, agents or representatives who need to
know such information for the purposes of acting in accordance with this
Agreement, and the Auction Agent shall prevent the transmission of such
information to others and shall cause its officers, employees, agents and
representatives to abide by the foregoing confidentiality restrictions.
10.3 AUCTION SCHEDULE; METHOD OF SUBMISSION OF ORDERS.
(a) The Fund and the Auction Agent shall normally conduct Auctions weekly
(usually Tuesday for Series A and Wednesday for Series B) in accordance with the
schedule set forth below.
TIME EVENT
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 3.2(a) hereof.
9:30 a.m. - 1:00 p.m. Auction Agent shall assemble information
communicated to it by Broker-Dealers as
provided in Section 2 of the Auction
Procedures. Submission deadline is 1:00
p.m.
Not earlier than 1:00 p.m. Auction Agent shall make determinations
pursuant to Section 3(a) of the Auction
Procedures.
By approximately 3:00 p.m. Auction Agent shall advise the Fund of
the results of the Auction as provided
in Section 3(b) of the Auction
Procedures. Submitted Bid Orders and
Submitted Sell Orders will be accepted
and rejected in whole or in part and
Preferred Shares will be allocated
as provided in Section 4 of the
Auction Procedures. Auction Agent shall
give notice of the Auction results as
set forth in Section 3.4 hereof.
(b) BD agrees to maintain a list of Potential Beneficial Owners and to contact
the Potential Beneficial Owners on such list on or prior to each Auction Date
for the purposes set forth in Section 1 of Part II of the Statement of
Preferences.
(c) BD shall submit Orders to the Auction Agent in writing in substantially the
form attached hereto as Exhibit B. BD shall submit separate Orders to the
Auction Agent for each Potential Beneficial Owner or Beneficial Owner on whose
behalf BD is submitting an Order and shall not net or aggregate the Orders of
Potential Beneficial Owners or Beneficial Owners on whose behalf BD is
submitting Orders.
(d) BD shall deliver to the Auction Agent (i) a written notice, substantially in
the form attached hereto as Exhibit C, of transfers of Preferred Shares, 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 D, of the failure of Preferred Shares to be transferred to or by any
Person that purchased or sold Preferred Shares 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 it is received by the Auction Agent by 3:00 p.m. on (1) the Business Day
preceding the Auction Date (in connection with notice delivered pursuant to
clause (i) of the foregoing sentence) or (2) the Business preceding the next
Auction Date following the failure of Preferred Shares to be transferred (in
connection with notice delivered pursuant to clause (ii) of the foregoing
sentence).
10.4 NOTICE OF AUCTION RESULTS.
(a) On each Auction Date, the Auction Agent shall notify BD by telephone,
facsimile or other electronic means as acceptable to the parties of the Auction
results as set forth in paragraph (a) of the Settlement Procedures. 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 Beneficial Owner, Potential Beneficial Owner, 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.
If any Beneficial Owner or Existing Holder selling Preferred Shares in
an Auction fails to deliver such shares, the Broker-Dealer of any Person that
was to have purchased Preferred Shares in such Auction may deliver to such
Person a number of whole Preferred Shares that is less than the number of shares
that otherwise was to be purchased by such Person. In such event, the number of
Preferred Shares to be so delivered shall be determined by such Broker-Dealer.
Delivery of such lesser number of shares shall constitute good delivery. Upon
the occurrence of any such failure to deliver shares, such Broker-Dealer shall
deliver to the Auction Agent the notice required by Section 3.3(d)(ii) hereof.
Notwithstanding the foregoing terms of this Section 3.4(b), any delivery or
non-delivery of Preferred Shares 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 3.3(d) hereof.
(c) In the event that the Fund has not notified the Auction Agent of the
inclusion of Taxable Income in the dividend for the Dividend Period to which
such Auction relates prior to the submission of Orders by the Broker-Dealer but
elects in accordance to the Statement of Preferences to include an additional
amount in the dividend with respect to such Dividend Period as an adjustment
with respect to such Taxable Income, the Auction Agent shall notify the
Broker-Dealer of such additional amount and the inclusion of Taxable Income in
such dividend and the Broker-Dealer will notify any Beneficial Owner or
Potential Beneficial Owner who will hold Shares as a result of such Auction of
additional amount and Taxable Income.
10.5 SERVICE CHARGE TO BE PAID TO BD.
Not later than 3:00 p.m. on each Dividend Payment Date, the Auction
Agent after each Auction will pay a service charge from funds provided by the
Fund to BD on the basis of the purchase price of Preferred Shares placed by BD
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 and the
denominator of which is 365, times (B) 0.25%, times (C) $25,000 times (D) the
sum of (I) the aggregate number of Preferred Shares 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 (II) the aggregate
number of Preferred Shares subject to valid Hold Orders (determined in
accordance with Section 1 of Part II of the Statement of Preferences) submitted
to the Auction Agent by BD plus (III) the number of Preferred Shares deemed to
be subject to Hold Orders by Beneficial Owners pursuant to Section 1 of Part II
of the Statement of Preferences 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 Fund and
BD 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, respectively, at the commencement of such
Dividend Period.
XI. THE AUCTION AGENT.
11.1 DUTIES AND RESPONSIBILITIES.
(a) The Auction Agent is acting solely as agent for the Fund hereunder and owes
no fiduciary duties to any other Person by reason of 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 by it, or for any
error of judgment made by it in the performance of its duties under this
Agreement.
11.2 RIGHTS OF THE AUCTION AGENT.
(a) The Auction Agent may rely upon, and shall be protected in acting or
refraining from acting upon, any communication authorized by this Agreement and
any written instruction, notice, request, direction, consent, report,
certificate, share certificate or other instrument, paper or document reasonably
believed by it to be genuine. The Auction Agent shall not be liable for acting
upon any telephone communication authorized by this Agreement which the Auction
Agent reasonably believes in good faith to have been given by the Fund or by BD.
The Auction Agent may record telephone communications with the Fund or with BD
or with both.
(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 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.
(d) The Auction Agent may perform its duties and exercise its rights hereunder
either directly or by or through agents or attorneys.
11.3 AUCTION AGENT'S DISCLAIMER.
The Auction Agent makes no representation as to the validity or
adequacy of this Agreement or the Preferred Shares.
XII. MISCELLANEOUS.
12.1 TERMINATION.
Any party may terminate this Agreement at any time upon five days'
prior written notice to the other party; provided, however, that if the
Broker-Dealer is UBS Securities LLC, neither UBS Securities LLC nor the Auction
Agent may terminate this Agreement without first obtaining the prior written
consent of the Fund to such termination, which consent shall not be withheld
unreasonably.
12.2 PARTICIPANT IN SECURITIES DEPOSITORY; PAYMENT OF DIVIDENDS IN SAME-DAY
FUNDS.
(a) BD is, and shall remain for the term of this Agreement, a member of, or a
participant in, the Securities Depository (or an affiliate of such a member or
participant).
(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 Preferred Shares available
in same-day funds on each Dividend Payment Date to customers that use BD (or its
affiliate) as Agent Member.
12.3 AGENT MEMBER.
At the date hereof, BD is a participant of the Securities Depository.
12.4 COMMUNICATIONS.
Except for (i) communications authorized to be made by telephone
pursuant to this Agreement or the Auction Procedures and (ii) communications in
connection with the Auctions (other than those expressly required to be in
writing), all notices, requests and other communications to any party hereunder
shall be in writing (including telecopy or similar writing) and shall be given
to such party at its address or telecopier number set forth below:
If to the Auction Agent, addressed to:
Deutsche Bank Trust Company Americas
Corporate Trust & Agency Services
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ -- 27th Floor
Mail Stop NYC60-2715
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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If to the BD,
addressed to:
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Telecopier Number: _______________
Telephone Number: _______________
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 BD by a BD Officer and on
behalf of the Auction Agent by an Authorized Officer. BD may record telephone
communications with the Auction Agent.
12.5 ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the parties
relating to the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or implied,
between the parties relating to the subject matter hereof.
12.6 BENEFITS.
Nothing in this Agreement, express or implied, shall give to any
person, other than the Fund, which is a third-party beneficiary of this
Agreement, the Auction Agent and BD and their respective successors and assigns,
any benefit of any legal or equitable right, remedy or claim under this
Agreement.
12.7 AMENDMENT; WAIVER.
(a) This Agreement shall not be deemed or construed to be modified, amended,
rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be charged
and by the Fund.
(b) Failure of either party to this Agreement to exercise any right or remedy
hereunder in the event of a breach of this Agreement by the other party shall
not constitute a waiver of any such right or remedy with respect to any
subsequent breach.
12.8 SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and permitted assigns of each of BD
and the Auction Agent. This Agreement may not be assigned by either party hereto
absent the prior written consent of the other party; PROVIDED, HOWEVER, that
this Agreement may be assigned by the Auction Agent to a successor Auction Agent
selected by the Fund without the consent of BD.
12.9 SEVERABILITY.
If any clause, provision or section of this Agreement shall be ruled
invalid or unenforceable by any court of competent jurisdiction, the invalidity
or unenforceability of such clause, provision or section shall not affect any
remaining clause, provision or section hereof.
12.10 EXECUTION IN COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
12.11 GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to agreements made and to be
performed in said state.
[Signature pages follow.]
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
By:_____________________________
Name:
Title:
[BROKER-DEALER]
By:_____________________________
Name:
Title:
EXHIBIT A
SETTLEMENT PROCEDURES
Capitalized terms used herein shall have the respective meanings
specified in the Statement of Preferences.
(i) On each Auction Date, the Auction Agent shall notify by telephone or through
the Auction Agent's auction processing system the Broker-Dealers that
participated in the Auction held on such Auction Date and submitted an Order on
behalf of any Beneficial Owner or Potential Beneficial Owner of:
(1) the Applicable Rate fixed for the next succeeding Dividend Period;
(2) whether Sufficient Clearing Bids existed for the determination of the
Applicable Rate;
(3) if such Broker-Dealer (a "Seller's Broker-Dealer") submitted a Bid or a
Sell Order on behalf of a Beneficial Owner, the number of Preferred Shares, if
any, to be sold by such Beneficial Owner;
(4) if such Broker-Dealer (a "Buyer's Broker-Dealer") submitted a Bid on
behalf of a Potential Beneficial Owner, the number of Preferred Shares, if any,
to be purchased by such Potential Beneficial Owner;
(5) if the aggregate number of Preferred Shares to be sold by all
Beneficial Owners on whose behalf such Broker-Dealer submitted a Bid or a Sell
Order exceeds the aggregate number of Preferred Shares to be purchased by all
Potential Beneficial Owners 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 Preferred Shares and the number of such
shares to be purchased from one or more Beneficial Owners on whose behalf such
Broker-Dealer acted by one or more Potential Beneficial Owners on whose behalf
each of such Buyer's Broker-Dealers acted;
(6) if the aggregate number of Preferred Shares to be purchased by all
Potential Beneficial Owners on whose behalf such Broker-Dealer submitted a Bid
exceeds the aggregate number of Preferred Shares to be sold by all Beneficial
Owners 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 Preferred Shares and the number of such shares
to be sold to one or more Potential Beneficial Owners on whose behalf such
Broker-Dealer acted by one or more Beneficial Owners on whose behalf each of
such Seller's Broker-Dealers acted; and
(7) the Auction Date of the next succeeding Auction with respect to the
Preferred Shares.
(ii) On each Auction Date, each Broker-Dealer that submitted an Order on behalf
of any Beneficial Owner or Potential Beneficial Owner shall:
(1) in the case of a Broker-Dealer that is a Buyer's Broker-Dealer,
instruct each Potential Beneficial Owner on whose behalf such Broker-Dealer
submitted a Bid that was accepted, in whole or in part, to instruct such
Potential Beneficial Owner'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 Preferred Shares to be purchased pursuant to such Bid against
receipt of such shares and advise such Potential Beneficial Owner of the
Applicable Rate for the next succeeding Dividend Period;
(2) in the case of a Broker-Dealer that is a Seller's Broker-Dealer,
instruct each Beneficial Owner on whose behalf such Broker-Dealer submitted a
Sell Order that was accepted, in whole or in part, or a Bid that was accepted,
in whole or in part, to instruct such Beneficial Owner's Agent Member to deliver
to such Broker-Dealer (or its Agent Member) through the Securities Depository
the number of Preferred Shares to be sold pursuant to such Order against payment
therefor and advise any such Beneficial Owner that will continue to hold
Preferred Shares of the Applicable Rate for the next succeeding Dividend Period;
(3) advise each Beneficial Owner on whose behalf such Broker-Dealer
submitted a Hold Order of the Applicable Rate for the next succeeding Dividend
Period;
(4) advise each Beneficial Owner on whose behalf such Broker-Dealer
submitted an Order of the Auction Date for the next succeeding Auction; and
(5) advise each Potential Beneficial Owner 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.
(iii) 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
Beneficial Owner or a Beneficial Owner shall, in such manner and at such time or
times as in its sole discretion it may determine, allocate any funds received by
it pursuant to (b)(i) above and any Preferred Shares received by it pursuant to
(b)(ii) above among the Potential Beneficial Owners, if any, on whose behalf
such Broker-Dealer submitted Bids, the Beneficial Owners, 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.
(iv) On each Auction Date:
(1) each Potential Beneficial Owner and Beneficial Owner shall instruct its
Agent Member as provided in (b)(i) or (ii) above, as the case may be;
(2) 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 Beneficial Owner 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
(3) 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.
(v) On the day after the Auction Date:
(1) each Bidder's Agent Member referred to in (d)(i) above shall instruct
the Securities Depository to execute the transactions described in (b)(i) or
(ii) above, and the Securities Depository shall execute such transactions;
(2) 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
(3) 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.
(vi) If a Beneficial Owner selling Preferred Shares in an Auction fails to
deliver such shares (by authorized book-entry), a Broker-Dealer may deliver to
the Potential Beneficial Owner on behalf of which it submitted a Bid that was
accepted a number of whole Preferred Shares that is less than the number of
shares that otherwise was to be purchased by such Potential Beneficial Owner. In
such event, the number of Preferred Shares 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 Agency Agreement and the Broker-Dealer Agreements.
EXHIBIT B
DEUTSCHE BANK TRUST COMPANY AMERICAS
AUCTION BID FORM
SUBMIT TO: ISSUE:
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Deutsche Bank Trust Company Americas Pioneer Municipal High Income Advantage Trust
Corporate Trust and Agency Group Auction Preferred Shares, Series A and B ("Preferred
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Attention: Auction Rate Securities
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
The undersigned Broker-Dealer submits the following Order on behalf of
the Bidder listed below:
Name of Bidder: ______________________
BENEFICIAL OWNER
Shares now held ___________ HOLD ___________________________
BID at rate of _______________________
Series ______ SELL _____________________________
POTENTIAL BENEFICIAL OWNER
# of shares ___________
BID at rate of __________
Notes:
(a) If submitting more than one Bid for one Bidder, use additional Auction
Bid Forms.
(1) If one or more Bids covering in the aggregate more than the number of
outstanding shares held by any Beneficial Owner are submitted, such bid shall be
considered valid in the order of priority set forth in the Auction Procedures on
the above issue.
(2) A Hold or Sell Order may be placed only by a Beneficial Owner covering
a number of shares not greater than the number of shares currently held.
(3) Potential Beneficial Owners may make only Bids, each of which must
specify a rate. If more than one Bid is submitted on behalf of any Potential
Beneficial Owner, each Bid submitted shall be a separate Bid with the rate
specified.
(4) Bids may contain no more than three figures to the right of the decimal
point (.001 of 1%). Fractions will not be accepted.
NAME OF BROKER-DEALER ________________________________
Authorized Signature _________________________________
EXHIBIT C
(Note: To be used only for transfers made other than pursuant to an Auction)
TRANSFER FORM
Re: Pioneer Municipal High Income Advantage Trust
Auction Preferred Shares, Series A and B ("Preferred Shares")
We are (check one):
[ ] the Existing Holder named below;
[ ] the Broker-Dealer for such Existing Holder; or
[ ] the Agent Member for such Existing Holder.
We hereby notify you that such Beneficial Owner has transferred _______
Series __ Preferred Shares to ---------------------------------.
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(Name of Existing Holder)
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(Name of Broker-Dealer)
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(Name of Agent Member)
By:_______________________
Printed Name:
Title:
EXHIBIT D
(Note: To be used only for failures to deliver or to pay for
Preferred Shares sold pursuant to an Auction)
NOTICE OF A FAILURE TO DELIVER
We are a Broker-Dealer for ___________________ (the "Purchaser"), which
purchased ________ Series __ Preferred Shares of Pioneer Municipal High Income
Advantage Trust in the Auction held on ____________________ from the Seller of
such shares.
We hereby notify you that (check one):
_____ the Seller failed to deliver such shares to the Purchaser.
_____ the Purchaser failed to make payment to the Seller upon
delivery of such shares.
Name: ____________________________
(Name of Broker-Dealer)
By: _____________________________
Printed Name:
Title: