Exhibit h
Pioneer Floating Rate Trust
(a Delaware statutory trust)
Auction Market Preferred Shares ("AMPS") of Beneficial Interest
[__] Shares [__]% AMPS, Series M7
[__] Shares [__]% AMPS, Series W7
[__] Shares [__]% AMPS, Series TH7
Liquidation Preference $25,000 per share
PURCHASE AGREEMENT
March 10, 2005
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇")
UBS Securities LLC
Citigroup Global Markets Inc.
c/▇ ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Pioneer Floating Rate Trust, a Delaware statutory trust (the "Fund"), proposes,
upon the terms and conditions set forth herein, to issue and sell [__] shares of
its Auction Market Preferred Shares, Series M7, [__] shares of its Auction
Market Preferred Shares, Series W7, and [__] shares of its Auction Market
Preferred Shares, Series TH7, each with a liquidation preference of $25,000 per
share (the "AMPS"). The AMPS will be authorized by, and subject to the terms and
conditions of, the Statement of Preferences of Auction Market Preferred Shares
of the Fund dated March [ ], 2005 (the "Statement") and the Agreement and
Declaration of Trust of the Fund, dated as of October 6, 2004 (the
"Declaration"), in the forms filed as exhibits to the Registration Statement
referred to in the third paragraph of this Agreement, as the same may be amended
from time to time. The Fund and the Fund's investment adviser, Pioneer
Investment Management, Inc., a Delaware corporation and a member of the
UniCredito Italiano Banking Group, Register of Banking Groups (the "Investment
Adviser"), and its investment subadviser, Highland Capital Management, L.P., a
Delaware partnership (the "Investment Manager" and together with the Investment
Adviser, the "Advisers"), each confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each
of the other Underwriters named in Schedule A hereto (collectively, the
"Underwriters," which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as
representative (in such capacity, the "Representative"), with respect to the
issue and sale by the Fund and the purchase by the Underwriters, acting
severally and not jointly, of the respective number of AMPS set forth in said
Schedule A.
The Fund understands that the Underwriters propose to make a public
offering of the AMPS as soon as the Representative deems advisable after this
Agreement has been executed and delivered.
1
The Fund has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form N-2 (No. 333-121930 and No.
811-21654) covering the registration of the AMPS under the Securities Act of
1933, as amended (the "1933 Act"), including the related preliminary prospectus
or prospectuses, and a notification on Form N-8A of registration of the Fund as
an investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"). Promptly after execution and delivery of this Agreement, the Fund
will either (i) prepare and file a prospectus in accordance with the provisions
of Rule 430A ("Rule 430A") of the rules and regulations of the Commission under
the 1933 Act and the 1940 Act (the "Rules and Regulations") and paragraph (c) or
(h) of Rule 497 ("Rule 497") of the Rules and Regulations or (ii) if the Fund
has elected to rely upon Rule 434 ("Rule 434") of the Rules and Regulations,
prepare and file a term sheet (a "Term Sheet") in accordance with the provisions
of Rule 434 and Rule 497. The information included in any such prospectus or in
any such Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective, if applicable, (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, including in each
case any statement of additional information incorporated therein by reference,
is herein called a "preliminary prospectus." Such registration statement,
including the exhibits thereto and schedules thereto at the time it became
effective and including the Rule 430A Information and the Rule 434 Information,
as applicable, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the Rules and Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus in the form first furnished to the Underwriters
for use in connection with the offering of the AMPS, including the statement of
additional information incorporated therein by reference, is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to the
preliminary prospectus dated March 7, 2005, together with the Term Sheet and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Fund and the Advisers. The Fund
and the Advisers jointly and severally represent and warrant to each Underwriter
as of the date hereof and as of the Closing Time referred to in Section 2(c)
hereof, and agree with each Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act, or order of
suspension or revocation of registration pursuant to Section 8(e) of the
1940 Act, and no proceedings for any such purpose have been instituted or
are pending or, to the knowledge of the Fund or an Adviser, are
contemplated by the
2
Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement, the notification on Form N-8A and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act, the 1940 Act and
the Rules and Regulations and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement
was issued and at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. If Rule 434
is used, the Fund will comply with the requirements of Rule 434 and the
Prospectus shall not be "materially different," as such term is used in
Rule 434, from the prospectus included in the Registration Statement at
the time it became effective.
Each preliminary prospectus and the prospectus filed as part of the
effective Registration Statement or as part of any amendment thereto, or
filed pursuant to Rule 497 under the 1933 Act, complied when so filed in
all material respects with the Rules and Regulations and each preliminary
prospectus and the Prospectus delivered to the Underwriters for use in
connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
If a Rule 462(b) Registration Statement is required in connection
with the offering and sale of the AMPS, the Fund has complied or will
comply with the requirements of Rule 111 under the 1933 Act Regulations
relating to the payment of filing fees thereof.
(ii) Independent Registered Public Accounting Firm. As of the date
of the report of the independent registered public accounting firm
contained in the Registration Statement, the independent registered public
accounting firm who certified the statement of assets and liabilities
included in the Registration Statement are independent registered public
accountants as required by the 1933 Act and the Rules and Regulations.
(iii) Financial Statements. The financial statements included in the
Registration Statement and the Prospectus, together with the related
notes, present fairly the financial position of the Fund at the date
indicated, and said statements have been prepared in conformity with
generally accepted accounting principles ("GAAP").
(iv) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1933 Act and the Rules and Regulations and, when read
together with the other information in the Prospectus, at the date the
Registration Statement became effective, at the date the Prospectus was
issued and at the Closing Time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were filed, not misleading.
(v) No Material Adverse Change. Since the respective dates as of
which information with respect to the Fund is given in the Registration
Statement and the Prospectus, except as otherwise stated therein and
except for changes in the net asset value of the Fund arising out of
3
normal investment operations, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Fund, whether or not arising
in the ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Fund, other than those
in the ordinary course of business, which are material with respect to the
Fund, and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Fund on any class of its capital shares,
other than those declared on February 10, 2005 and paid on March 22, 2005.
(vi) Good Standing of the Fund. The Fund has been organized and is
validly existing as a statutory trust in good standing under the laws of
the state of Delaware and has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Fund is duly qualified to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) No Subsidiaries. The Fund has no subsidiaries.
(viii)Investment Company Status. The Fund is registered with the
Commission under the 1940 Act as a closed-end non-diversified management
investment company, and no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or
threatened by the Commission.
(ix) Officers and Trustees. No person is serving or acting as an
officer, trustee or investment adviser of the Fund except in accordance
with the provisions of the 1940 Act and the Rules and Regulations and the
Investment Advisers Act of 1940, as amended (the "Advisers Act"), and the
rules and regulations of the Commission promulgated under the Advisers Act
(the "Advisers Act Rules and Regulations"). Except as disclosed in the
Registration Statement and the Prospectus (or any amendment or supplement
to either of them), no trustee of the Fund is (A) an "interested person"
(as defined in the 1940 Act) of the Fund or (B) an "affiliated person" (as
defined in the 1940 Act) of any Underwriter.
(x) Capitalization. The authorized, issued and outstanding shares of
beneficial interest of the Fund as of the date of the Prospectus are as
set forth in the Prospectus as of the date thereof under the heading
"Capitalization." All issued and outstanding shares of beneficial interest
of the Fund have been duly authorized and validly issued and are fully
paid and non-assessable and have been offered and sold or exchanged by the
Fund in compliance with all applicable laws (including, without
limitation, federal and state securities laws); none of the outstanding
shares of beneficial interest of the Fund were issued in violation of the
preemptive or other similar rights of any securityholder of the Fund.
(xi) Authorization and Description of AMPS. The AMPS to be purchased
by the Underwriters from the Fund have been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement and, when issued
and delivered by the Fund pursuant to this Agreement against payment of
the consideration set forth herein, will be validly issued and fully paid
and non-assessable. The AMPS conform, in all material respects, to all
statements relating thereto contained in the Prospectus and such
description conforms, in all material respects, to the rights set forth in
the instruments defining the same; no holder of the AMPS will be subject
to personal liability by reason of being such a holder; and the issuance
of the AMPS is not subject to the preemptive or other similar rights of
any securityholder of the Fund.
4
(xii) Absence of Defaults and Conflicts. The Fund is not in
violation of the Declaration or the Fund's by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which it is a party or by which it may be bound, or to which any of the
property or assets of the Fund is subject (collectively, "Agreements and
Instruments") except for such violations or defaults that would not result
in a Material Adverse Effect; and the execution, delivery and performance
of this Agreement, the Advisory Agreement, the Administration Agreement,
the Custodian Agreement, the Investment Company Service Agreement, the
Auction Agency Agreement and the Expense Limitation Agreement referred to
in the Registration Statement (as used herein, the "Advisory Agreement,"
the "Administration Agreement," the "Custodian Agreement," the "Transfer
Agency Agreement," the "Auction Agency Agreement" and the "Expense
Limitation Agreement," respectively) and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the AMPS and the use of the proceeds
from the sale of the AMPS as described in the Prospectus under the caption
"Use of Proceeds") and compliance by the Fund with its obligations
hereunder have been duly authorized by all necessary action and do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Fund
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the Declaration or the Fund's by-laws, or
any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Fund or any of its assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Fund.
(xiii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Fund or an Adviser, threatened, against or affecting the Fund, which
is required to be disclosed in the Registration Statement (other than as
disclosed therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets of the Fund or
the consummation of the transactions contemplated in this Agreement or the
performance by the Fund of its obligations hereunder. The aggregate of all
pending legal or governmental proceedings to which the Fund is a party or
of which any of its property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto by the 1933 Act, the 1940
Act or by the Rules and Regulations which have not been so described and
filed as required.
(xv) Possession of Intellectual Property. The Fund owns or
possesses, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual
5
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by the Fund, and the Fund has not received any
notice or is not otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Advisers therein, and
which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Fund of its
obligations hereunder, in connection with the offering, issuance or sale
of the AMPS hereunder or the consummation of the transactions contemplated
by this Agreement, except such as have been already obtained or as may be
required under the 1933 Act, the 1940 Act, the Securities Exchange Act of
1934, as amended (the "1934 Act") or state securities laws.
(xvii)Possession of Licenses and Permits. The Fund possesses such
permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to operate
its properties and to conduct the business as contemplated in the
Prospectus. The Fund is in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and the Fund has not received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xviii) Advertisements. Any advertising, sales literature or other
promotional material (including "prospectus wrappers," "broker kits,"
"road show slides" and "road show scripts") authorized in writing by or
prepared by the Fund or the Advisers and used in connection with the
public offering of the AMPS (collectively, "sales material") does not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading. Moreover, all sales material complied and will comply in all
material respects with the applicable requirements of the 1933 Act, the
1940 Act and the Rules and Regulations and the rules and interpretations
of the NASD, Inc. ("NASD").
(xix) Subchapter M. The Fund intends to direct the investment of the
proceeds of the offering described in the Registration Statement in such a
manner as to comply with the requirements of Subchapter M of the Internal
Revenue Code of 1986, as amended ("Subchapter M of the Code" and the
"Code," respectively), and as of the date of this Agreement qualifies as a
regulated investment company under Subchapter M of the Code.
(xx) Distribution of Offering Materials. The Fund has not
distributed and, prior to the later to occur of (A) the Closing Time and
(B) completion of the distribution of the AMPS, will not distribute any
offering material in connection with the offering and sale of the AMPS
other than the Registration Statement, preliminary prospectuses, the
Prospectus or the sales materials.
(xxi) Accounting Controls. The Fund maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (A)
transactions are executed in accordance with management's general or
specific authorization and with the applicable
6
requirements of the 1940 Act, the Rules and Regulations and the Code; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain accountability for assets and to maintain compliance with the
books and records requirements under the 1940 Act and the Rules and
Regulations; (C) access to assets is permitted only in accordance with the
management's general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(xxii)Absence of Undisclosed Payments. To the Fund's knowledge,
neither the Fund nor any employee or agent of the Fund has made any
payment of funds of the Fund or received or retained any funds, which
payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus.
(xxiii) Material Agreements. This Agreement, the Advisory Agreement,
the Administration Agreement, the Custodian Agreement, the Transfer Agency
Agreement, the Auction Agency Agreement and the Expense Limitation
Agreement have each been duly authorized by all requisite action on the
part of the Fund, executed and delivered by the Fund, as of the dates
noted therein and each complies with all applicable provisions of the 1940
Act. Assuming due authorization, execution and delivery by the other
parties thereto, each such agreement constitutes a valid and binding
agreement of the Fund, enforceable in accordance with its terms, except as
affected by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws, relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
(xxiv)Registration Rights. There are no persons with registration
rights or other similar rights to have any securities of the Fund
registered pursuant to the Registration Statement or otherwise registered
by the Fund under the 1933 Act.
(xxv) Ratings. The AMPS have been, or prior to the Closing Date will
be, assigned a rating of 'Aaa' by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") and 'AAA' by Fitch, Inc. ("Fitch").
(xxvi) Leverage. The Fund has no liability for borrowed money,
including under any reverse repurchase agreement.
(b) Representations and Warranties by the Advisers. Each of the Advisers
represents and warrants to each Underwriter, as of the date hereof and as of the
Closing Time referred to in Section 2(c) hereof, as follows:
(i) Good Standing of the Advisers. Such Adviser has been duly
organized and is validly existing and in good standing as a corporation or
partnership, as the case may be, under the laws of the state of Delaware,
with full power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and each is duly
qualified as a foreign corporation or partnership, as the case may be, to
transact business and is in good standing in each other jurisdiction in
which such qualification is required.
(ii) Investment Adviser Status. Such Adviser is duly registered with
the Commission as an investment adviser under the Advisers Act, and is not
prohibited by the Advisers Act or the 1940 Act, or the rules and
regulations under such acts, from acting under the Advisory Agreement and
the Subadvisory Agreement to which it is a party for the Fund as
contemplated by the Prospectus.
(iii) Description of the Advisers. The description of such Adviser
in the Registration Statement and the Prospectus (and any amendment or
supplement to either of them) complied and
7
complies in all material respects with the provisions of the 1933 Act, the
1940 Act, the Advisers Act, the Rules and Regulations and the Advisers Act
Rules and Regulations and is true and correct and does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(iv) Capitalization. Such Adviser has the financial resources
available to it necessary for the performance of its services and
obligations as contemplated in the Prospectus, this Agreement and under
the Advisory Agreement and the Subadvisory Agreement to which it is a
party.
(v) Authorization of Agreements; Absence of Defaults and Conflicts.
Such Adviser has duly authorized, executed and delivered each of this
Agreement, the Advisory Agreement and the Subadvisory Agreement to which
it is a party, and each of the Advisory Agreement and the Subadvisory
Agreement to which it is a party constitutes a valid and binding
obligation of such Adviser, enforceable in accordance with its terms,
except as affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws, relating to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law); and neither the
execution and delivery of this Agreement, or the Advisory Agreement and
the Subadvisory Agreement to which such Adviser is a party nor the
performance by such Adviser of its obligations hereunder or thereunder
will conflict with, or result in a breach of any of the terms and
provisions of, or constitute, with or without the giving of notice or
lapse of time or both, a default under, any agreement or instrument to
which such Adviser is a party or by which it is bound, and which is
material to the conduct of such Adviser's services under the Advisory
Agreement, the Subadvisory Agreement, the certificate of incorporation,
the by-laws, the limited partnership agreement or other organizational
documents of the Adviser, or to the Adviser's knowledge, by any law,
order, decree, rule or regulation applicable to it of any jurisdiction,
court, federal or state regulatory body, administrative agency or other
governmental body, stock exchange or securities association having
jurisdiction over the Adviser or its properties or operations; and no
consent, approval, authorization or order of any court or governmental
authority or agency is required for the consummation by the Adviser of the
transactions contemplated by this Agreement, the Advisory Agreement or the
Subadvisory Agreement to which it is a party, except as have been obtained
or may be required under the 1933 Act, the 1940 Act, the 1934 Act or state
securities laws.
(vi) No Material Adverse Change. Since the respective dates as of
which information with respect to each of the Advisers is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, there has not occurred any event which should reasonably be
expected to have a material adverse effect on the ability of such Adviser
to perform its obligations under any of this Agreement, the Advisory
Agreement and the Subadvisory Agreement to which it is a party.
(vii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
such Adviser, threatened against or affecting such Adviser or any
"affiliated person" of such Adviser (as such term is defined in the 1940
Act) or any partners, directors, officers or employees of the foregoing,
whether or not arising in the ordinary course of business, which should
reasonably be expected to result in any material adverse change in the
condition, financial or otherwise, or earnings, business affairs or
business prospects of such Adviser, materially and adversely affect the
properties or assets of such Adviser or to materially impair or adversely
affect the ability of such Adviser to function as an investment adviser or
perform its obligations under the Advisory Agreement or the Subadvisory
Agreement
8
to which it is a party, or which is required to be disclosed in the
Registration Statement and the Prospectus (and has not been so disclosed).
(viii)Absence of Violation or Default. Such Adviser is not in
violation of its organizational documents or in default under any
agreement, indenture or instrument, where such violation or default should
reasonably be expected to have a material adverse effect on the ability of
such Adviser to perform its obligations under either of the Advisory
Agreement or the Subadvisory Agreement to which it is a party.
(c) Officer's Certificates. Any certificate signed by any officer of the
Fund or either Adviser delivered to the Representative or to counsel for the
Underwriters shall be deemed a representation and warranty by the Fund or such
Adviser, as the case may be, to each Underwriter as to the matters covered
thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) AMPS. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Fund
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Fund, at the
price per share set forth in Schedule B, the number of AMPS set forth in
Schedule A opposite the name of such Underwriter, plus any additional number of
AMPS which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Commission. The Fund agrees to pay to the Underwriters a commission as
set forth in Schedule B as compensation to the Underwriters for their
performance under this Agreement.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the AMPS shall be made at the offices of Clifford Chance US
LLP, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or through the facilities of
The Depository Trust Company ("DTC"), or at such other place as shall be agreed
upon by the Representative and the Fund, at 10:00 A.M. (Eastern time) on the
second (third, if the pricing occurs after 4:30 P.M. (Eastern Time) on any given
day) business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representative and the Fund (such
time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Fund by wire transfer of immediately
available funds to a bank account designated by the Fund, against delivery to
the Representative through DTC for the respective accounts of the Underwriters
of the AMPS to be purchased by them. It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the AMPS which it has agreed to
purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the AMPS to be purchased by any Underwriter whose funds have not been
received by the Closing Time but such payment shall not relieve such Underwriter
from its obligations hereunder.
(d) Denominations; Registration. Certificates for the AMPS, each
representing one series of the preferred shares, shall be registered in the name
of Cede & Co., as nominee for DTC. The certificates for the AMPS will be made
available for examination and packaging by the Representative in the City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time.
9
SECTION 3. Covenants.
(a) The Fund and the Advisers, jointly and severally, covenant with each
Underwriter as follows:
(i) Compliance with Securities Regulations and Commission Requests.
The Fund, subject to Section 3(a)(ii), will comply with the requirements
of Rule 430A or Rule 434, as applicable, and will notify the
Representative immediately, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the AMPS for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Fund will
promptly effect the filings necessary pursuant to Rule 497 and will take
such steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 497 was received for filing
by the Commission and, in the event that it was not, it will promptly file
such prospectus. The Fund will make every reasonable effort to prevent the
issuance of any stop order, or order of suspension or revocation of
registration pursuant to Section 8(e) of the 1940 Act, and, if any such
stop order or order of suspension or revocation of registration is issued,
to obtain the lifting thereof at the earliest possible moment.
(ii) Filing of Amendments. The Fund will give the Representative
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the Prospectus, will furnish the Representative with copies of any such
documents a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file or use any such document to
which the Representative or counsel for the Underwriters shall object.
(iii) Delivery of Registration Statements. The Fund has furnished or
will deliver to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representative,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(iv) Delivery of Prospectuses. The Fund has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Fund hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The Fund
will furnish to each Underwriter, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the Prospectus (as amended or supplemented)
as such Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
10
(v) Continued Compliance with Securities Laws. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with
sales of the AMPS, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Fund, to amend the Registration Statement or amend
or supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements of the 1933 Act or
the Rules and Regulations, the Fund will promptly prepare and file with
the Commission, subject to Section 3(a)(ii), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements,
and the Fund will furnish to the Underwriters such number of copies of
such amendment or supplement as the Underwriters may reasonably request.
(vi) Blue Sky Qualifications. The Fund will use its best efforts, in
cooperation with the Underwriters, to qualify the AMPS for offering and
sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Representative may designate and
to maintain such qualifications in effect for a period of not less than
one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; provided, however,
that the Fund shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer
in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction
in which the AMPS have been so qualified, the Fund will file such
statements and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect for a period of not less than one
year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(vii) Rule 158. The Fund will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(viii)Use of Proceeds. The Fund will use the net proceeds received
by it from the sale of the AMPS in the manner specified in the Prospectus
under "Use of Proceeds."
(ix) Reporting Requirements. The Fund, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1940 Act and the 1934 Act within the time periods required by the
1940 Act and the Rules and Regulations and the 1934 Act and the rules and
regulations of the Commission thereunder, respectively.
(x) Subchapter M. The Fund will comply with the requirements of
Subchapter M of the Code to qualify as a regulated investment company
under the Code.
(xi) No Manipulation of Market for AMPS. The Fund will not (a) take,
directly or indirectly, any action designed to cause or to result in, or
that might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Fund to facilitate the
sale or resale of the AMPS, and (b) until the Closing Date (i) sell, bid
for or purchase the AMPS or pay any person any compensation for soliciting
purchases of the AMPS or (ii) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of
the Fund.
11
(xii) Rule 462(b) Registration Statement. If the Fund elects to rely
upon Rule 462(b), the Fund shall file a Rule 462(b) Registration Statement
with the Commission in compliance with Rule 462(b) by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement, and the Fund shall
at the time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the 1933 Act.
(xiii)Accountant's Certificate. The Fund will furnish to the
Underwriters, on the date on which delivery is made to the Rating
Agencies, the report and the confirmation of the Independent Registered
Public Accountant (as defined in the Statement) required to be delivered
pursuant to paragraph 6(f) of Part I of the Statement.
(b) Except as provided in this Agreement, the Fund will not sell, contract
to sell or otherwise dispose of any of its preferred shares of beneficial
interest of the same series as the AMPS or any securities convertible into or
exercisable or exchangeable for its preferred shares of beneficial interest of
the same series as the AMPS, or grant any options or warrants to purchase its
preferred shares of beneficial interest of the same series as the AMPS, for a
period of 180 days after the date of this Prospectus, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 4. Payment of Expenses.
(a) Expenses. The Fund will pay all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the AMPS,
(iii) the preparation, issuance and delivery of the certificates for the AMPS to
the Underwriters, including any stock or other transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the AMPS to the
Underwriters, (iv) the fees and disbursements of the Fund's counsel, accountants
and other advisers, (v) the qualification of the AMPS under securities laws in
accordance with the provisions of Section 3(a)(vi) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, Prospectus and any
amendments or supplements thereto, (vii) the preparation, printing and delivery
to the Underwriters of copies of the Blue Sky Survey and any supplement thereto,
(viii) the fees and expenses of any transfer agent or registrar for the AMPS,
(ix) the fees and expenses incurred in connection with the rating of the AMPS
and (x) the printing of any sales material.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section 9(a)
hereof, the Fund and each of the Advisers, jointly and severally, agree that
they shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Fund and the Advisers
contained in Section 1 hereof or in certificates of any officer of the Fund or
either Adviser delivered pursuant to the provisions hereof, to the performance
by the Fund and each Adviser of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective or will
have become effective by 5:30 p.m.,
12
New York City time on the date hereof, and at Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act, no notice or order pursuant to Section 8(e) of the
1940 Act shall have been issued, and no proceedings with respect to either shall
have been initiated or, threatened by the Commission, and any request on the
part of the Commission for additional information shall have been complied with
or waived to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 497 (or a post-effective amendment providing
such information shall have been filed and declared effective in accordance with
the requirements of Rule 430A) or, if the Fund has elected to rely upon Rule
434, a Term Sheet shall have been filed with the Commission in accordance with
Rule 497.
(b) Opinion of Counsel for Fund and the Advisers. At Closing Time, the
Representative shall have received the favorable opinions, dated as of Closing
Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Fund and the
Investment Adviser, and of Stroock & Stroock & ▇▇▇▇▇ LLP, counsel for the
Investment Manager, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters to the effect set forth in Exhibit A and Exhibit B,
respectively, hereto and to such further effect as counsel to the Underwriters
may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Clifford Chance US LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
with respect to the matters set forth in paragraphs 1, 3 through 6, inclusive, 8
(only as to the information in the Prospectus under "Description of AMPS" and
"The Auction"), 13, 14 and the second to last paragraph of Exhibit A hereto. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York and the
federal law of the United States, upon the opinions of counsel satisfactory to
the Representative. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Fund and certificates of public officials.
(d) Officers' Certificates. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Fund, whether or not arising in the ordinary course of business, except for
changes in the net asset value of the Fund arising out of normal investment
operations, and the Representative shall have received a certificate of a duly
authorized officer of the Fund and of the chief financial or chief accounting
officer of the Fund and of the President or a Vice President (or similar
officials with comparable responsibilities) of each of the Advisers, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Sections 1(a) and (b) hereof,
as applicable, are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) each of the Fund and the
Advisers, respectively, has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to Closing Time,
(iv) with respect to each Adviser, there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of such Adviser, whether or not arising in the ordinary
course of business and (v) no stop order suspending the effectiveness of the
Registration Statement, or order of suspension or revocation of registration
pursuant to Section 8(e) of the 1940 Act, has been issued and no proceedings for
any such purpose have been instituted or are pending or are contemplated by the
Commission.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from Ernst & Young LLP a
letter dated such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter for
13
each of the other Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representative shall
have received from Ernst & Young LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(g) Rating. The Fund shall have delivered and you shall have received
evidence satisfactory to you that the AMPS are rated 'Aaa' by ▇▇▇▇▇'▇ and 'AAA'
by Fitch as of the Closing Date, and there shall not have been given any notice
of any intended or potential downgrading, or of any review for a potential
downgrading, in the rating accorded to the AMPS or any other securities issued
by the Fund, by ▇▇▇▇▇'▇ or by Fitch.
(h) Asset Coverage. As of the Closing Date and assuming the receipt of the
net proceeds from the sale of the AMPS, the Investment Company Act Preferred
Shares Asset Coverage and the Preferred Shares Basic Maintenance Amount (each as
defined in the Statement) each will be met.
(i) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the AMPS as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Fund and
the Advisers in connection with the organization and registration of the Fund
under the 1940 Act and the issuance and sale of the AMPS as herein contemplated
shall be satisfactory in form and substance to the Representative and counsel
for the Underwriters.
(j) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to the Fund at any
time at or prior to Closing Time and such termination shall be without liability
of any party to any other party except as provided in Section 4 and except that
Sections 1, 6, 7, 8 and 13 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Fund and the Advisers, jointly
and severally, agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or
14
of any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided that (subject
to Section 6(e) below) any such settlement is effected with the written
consent of the Fund; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Fund or the
Advisers by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); and
provided further that neither the Fund nor either Adviser will be liable to any
Underwriter with respect to any indemnification contained in this paragraph (a)
to the extent that the Fund or such Adviser shall sustain the burden of proving
that any such loss, liability, claim, damage or expense resulted from the fact
that such Underwriter, in contravention of a requirement of this Agreement or
applicable law, sold AMPS to a person to whom such Underwriter failed to send or
give, at or prior to the Closing Time, a copy of the Prospectus, as then amended
or supplemented if: (i) the Fund has previously furnished copies thereof
(sufficiently in advance of the Closing Time to allow for distribution by the
Closing Time) to the Underwriter and the loss, liability, claim, damage or
expense of such Underwriter resulted from an untrue statement or omission of a
material fact contained in or omitted from the preliminary prospectus which was
corrected in the Prospectus as, if applicable, amended or supplemented prior to
the Closing Time and such Prospectus was required by law to be delivered at or
prior to the written confirmation of sale to such person and (ii) the failure to
give or send such Prospectus by the Closing Time to such person would have
constituted the sole basis for the claim asserted by such person against the
party or parties asserting such loss, liability, claim, damage or expense as to
which indemnification is sought pursuant to this paragraph (a).
(b) Indemnification of the Fund, Advisers, Trustees, Directors, Partners
and Officers. Each Underwriter severally agrees to indemnify and hold harmless
the Fund and the Advisers, their respective trustees and directors and partners,
each of the Fund's officers who signed the Registration Statement, and each
person, if any, who controls the Fund or either Adviser within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the Fund
or the Advisers by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Indemnification for Marketing Materials. In addition to the foregoing
indemnification, the Fund and the Advisers also, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, against any and all loss, liability, claim, damage
and expense described in
15
the indemnity contained in Section 6(a), as limited by the proviso set forth
therein, with respect to any sales material.
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement of such
action, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, to assume the defense thereof with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense thereof,
the indemnifying party shall not be liable to the indemnified party for any
legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation. In any such action where the
indemnifying party does not assume the defense thereof, counsel to the
indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in the case of parties
indemnified pursuant to Section 6(a) above, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Fund and the Advisers, and in each case, an
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Fund or the Advisers on the one hand and the
Underwriters on the other hand from the offering of the AMPS pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such
16
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Fund and the Advisers
on the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Fund and the Advisers on the one
hand and the Underwriters on the other hand in connection with the offering of
the AMPS pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the AMPS pursuant to
this Agreement (before deducting expenses) received by the Fund and the total
underwriting discount received by the Underwriters (whether from the Fund or
otherwise), in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the AMPS as set forth on such cover.
The relative fault of the Fund and the Advisers on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Fund or the Advisers or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Fund, the Advisers and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the AMPS underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each trustee of the Fund and each director or partner of the Advisers,
respectively, each officer of the Fund who signed the Registration Statement,
and each person, if any, who controls the Fund or each of Advisers, within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Fund and the Advisers. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of AMPS set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Fund or either of the Advisers submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Fund or the Advisers, and shall survive
delivery of the AMPS to the Underwriters.
17
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this Agreement,
by notice to the Fund, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Fund or any Adviser, whether or not arising
in the ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representative, impracticable or inadvisable to market the AMPS
or to enforce contracts for the sale of the AMPS, or (iii) if trading in the
common shares of the Fund has been suspended or materially limited by the
Commission or the New York Stock Exchange ("NYSE"), or if trading generally on
the American Stock Exchange or the NYSE or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States or
(iv) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7, 8 and 13 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at Closing Time to purchase
the AMPS which it or they are obligated to purchase under this Agreement (the
"Defaulted AMPS"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted AMPS in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representative shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted AMPS does not exceed 10% of the number of
AMPS to be purchased on such date, each of the non-defaulting Underwriters shall
be obligated, severally and not jointly, to purchase the full amount thereof in
the proportions that their respective underwriting obligations hereunder bear to
the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted AMPS exceeds 10% of the number of AMPS to
be purchased on such date, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement either the Representative or the Fund shall have the right to
postpone Closing Time for a period not exceeding seven days in order to effect
any required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
SECTION 11. Tax Disclosure.
Notwithstanding any other provision of this Agreement, from the
commencement of discussions with respect to the transactions contemplated
hereby, the Fund and each of the Advisers (and each
18
employee, representative or other agent of the Fund) may disclose to any and all
persons, without limitation of any kind, the tax treatment and tax structure (as
such terms are used in Sections 6011, 6111 and 6112 of the U.S. Code and the
Treasury Regulations promulgated thereunder) of the transactions contemplated by
this Agreement and all materials of any kind (including opinions or other tax
analyses) that are provided relating to such tax treatment and tax structure.
SECTION 12. Notices.
All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall
be directed to the Representative, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., 4 World Financial
Center, New York, New York 10080, attention of Equity Capital Markets; and
notices to the Fund or each of the Advisers shall be directed, as
appropriate, to the office of Pioneer Investment Management, Inc. at ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel or
Highland Capital Management, L.P. at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
SECTION 13. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Fund, each of the Advisers and their respective partners and
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Fund, the Advisers and their respective successors and the
controlling persons and officers, trustees, directors and partners referred to
in Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Fund, the Advisers and their respective partners and
successors, and said controlling persons and officers, trustees, directors and
partners and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of AMPS from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME.
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. UNLESS OTHERWISE EXPLICITLY PROVIDED, SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
[signatures on following page]
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters, the Fund, and each of the Advisers in accordance with its
terms.
Very truly yours,
PIONEER FLOATING RATE TRUST
By:
----------------------------------
Name:
Title:
PIONEER INVESTMENT MANAGEMENT, INC.
By:
----------------------------------
Name:
Title:
HIGHLAND CAPITAL MANAGEMENT, L.P.
By: STRAND ADVISORS, INC.
Title: General Partner
By:
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
----------------------------------------
Authorized Signatory
For itself and as
Representative of the
other Underwriters named
in Schedule A hereto.
20
SCHEDULE A
Number of AMPS
Name of Underwriter Series M7 Series W7 Series TH7
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.......................... [______] [______] [______]
UBS Securities LLC...............................[______] [______] [______]
Citigroup Global Markets Inc.....................[______] [______] [______]
-------- -------- --------
Total............................................[______] [______] [______]
======== ======== ========
Sch A-1
SCHEDULE B
PIONEER FLOATING RATE TRUST
Auction Market Preferred Shares of Beneficial Interest
[__] Shares [__]% AMPS, Series M7
[__] Shares [__]% AMPS, Series W7
[__] Shares [__]% AMPS, Series TH7
Liquidation Preference $25,000 per share
1. The initial public offering price per share for the AMPS, determined as
provided in said Section 2, shall be $25,000.
2. The purchase price per share for the AMPS to be paid by the several
Underwriters shall be $24,750, such discount from the initial public offering
price representing the commission to be paid to the Underwriters for their
commitment hereunder of $250.
3. The initial dividend rate on the AMPS shall be [__]% per annum for the
Series M7, [__]% per annum for the Series W7 and [__]% per annum for the Series
TH7.
Sch B-1
Exhibit A
FORM OF OPINION OF TRUST'S AND INVESTMENT ADVISER'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
[ ], 2005
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, Incorporated
As Representative of the Underwriters
4 World Financial Center
New York, New York 10080
Re: Pioneer Floating Rate Trust
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5(b) of the Purchase
Agreement, dated as of March 9, 2005 (the "Purchase Agreement"), among you,
Pioneer Investment Management, Inc., a Delaware corporation (the "Adviser"),
Highland Capital Management, L.P., a Delaware partnership (the "Subadviser"),
and Pioneer Floating Rate Trust, a Delaware statutory trust (the "Trust").
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings ascribed to them in the Purchase Agreement.
We have acted as counsel for the Trust and the Adviser in connection with the
sale to the Underwriters by the Trust of an aggregate of [__] preferred shares
of beneficial interest, par value $0.0001, designated Series M7 Auction Market
Preferred Shares of the Trust, [__] preferred shares of beneficial interest, par
value $0.0001, designated Series W7 Auction Market Preferred Shares of the
Trust, and [__] preferred shares of beneficial interest, par value $0.0001,
designated Series TH7 Auction Market Preferred Shares of the Trust, each with a
liquidation preference of $25,000 per share (collectively, the "Shares"),
pursuant to Section 2(a) of the Purchase Agreement. The rights, preferences and
limitations of the Shares are set forth in a Statement of Preferences of Auction
Market Preferred Shares (the "Statement"). As such counsel, we have assisted in
the preparation and filing with the Securities and Exchange Commission (the
"Commission") of the Trust's Registration Statement on Form N-2 dated January
10, 2005 (File No. 333-121930 and No. 811-21654), and amendment No. 1 thereto,
which Registration Statement became effective on March 10, 2005 (the "Effective
Date"). Such Registration Statement, in the form in which it became effective,
is referred to herein as the "Registration Statement," and the prospectus dated
March 10, 2005 (the "Prospectus") and statement of additional information dated
March 10, 2005 included therein, as filed pursuant to Rule 497 of the Securities
Act of 1933, as amended (the "Securities Act"), on March [__], 2005, referred to
herein as the "Prospectus" and the "Statement of Additional Information."
We have examined and relied upon the Agreement and Declaration of Trust and
By-laws of the Trust, each as amended to date, the Statement, records of
meetings or written actions of shareholders and of the Board of Trustees of the
Trust, trust proceedings of the Trust in connection with the authorization and
issuance of the Common Shares, the Certificate of Incorporation and By-laws of
the Adviser, each as amended to date, written actions of the Board of Directors
of the Adviser, the Registration Statement, the Prospectus, the Statement of
Additional Information, the Purchase Agreement, certificates of representatives
of the Trust and the Adviser, certificates of public officials and such other
documents, instruments and certificates as we have deemed necessary as a basis
for the opinions hereinafter
A-1
expressed. We have assumed that all corporate or trust records of the Trust and
the Adviser and stock books of the Trust are complete and accurate.
In our examination of the documents referred to above, we have assumed the
genuineness of all signatures, the legal capacity of all individual signatories,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as copies, and the
authenticity of the originals of such documents.
Insofar as the opinions expressed in this letter relate to factual matters,
information with respect to which is in the possession of the Trust or the
Adviser, we have relied, with your permission, upon certificates, statements and
representations of officers and other representatives of the Trust and the
Adviser, representations made in the Purchase Agreement and statements contained
in the Registration Statement. We have not searched any electronic databases or
the dockets of any court, administrative body or regulatory or governmental
agency or any other filing office in any jurisdiction in connection with the
preparation of this letter.
For purposes of the opinions set forth in this letter, we have assumed that the
agreements referred to herein have been duly authorized, executed and delivered
by all parties thereto other than the Trust and the Adviser, and that all such
other parties have all requisite power and authority to effect the transactions
contemplated by such agreements. We have also assumed that each such agreement
is the valid and binding obligation of each party thereto other than the Trust
and the Adviser and is enforceable against such other parties in accordance with
its terms. We do not render any opinion as to the application of any federal or
state law or regulation to the power, authority or compliance of any party to
the agreements other than the Trust and the Adviser.
Our opinions set forth below are qualified to the extent that they may be
subject to or affected by (i) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws relating to or affecting the
rights of creditors generally, (ii) statutory or decisional law concerning
recourse by creditors to security in the absence of notice or hearing, (iii)
duties and standards imposed on creditors and parties to contracts, including,
without limitation, requirements of good faith, reasonableness and fair dealing
and (iv) general equitable principles. We express no opinion as to the
availability of any equitable or specific remedy upon any breach of any of the
agreements as to which we are opining herein, or any of the agreements,
documents or obligations referred to therein, or to the successful assertion of
any equitable defenses, inasmuch as the availability of such remedies or the
success of any equitable defense may be subject to the discretion of a court.
We also express no opinion herein as to any provision of any agreement (a) which
may be deemed to or construed to waive any right of the Trust or the Adviser,
(b) to the effect that rights and remedies are not exclusive, that every right
or remedy is cumulative and may be exercised in addition to or with any other
right or remedy and does not preclude recourse to one or more other rights or
remedies, (c) relating to the effect of invalidity or unenforceability of any
provision of any agreement on the validity or enforceability of any other
provision thereof, (d) requiring the payment of penalties, consequential damages
or liquidated damages, (e) which is in violation of public policy, including,
without limitation, any provision relating to non-competition and
non-solicitation or relating to indemnification and contribution with respect to
securities law matters, (f) purporting to indemnify any person against his, her
or its own negligence or intentional misconduct, (g) which provides that the
terms of any agreement may not be waived or modified except in writing or (h)
relating to choice of law or consent to jurisdiction.
Our opinion expressed in paragraph 1 below as to valid existence and good
standing of the Trust and the payment of franchise taxes is based solely on
certificate of legal existence issued by the Secretary of State of the State of
Delaware, a copy of which has been made available to your counsel, and our
opinion with respect to such matters is rendered as of the date of such
certificates and limited accordingly. Our opinion expressed in paragraph 15
below as to the valid existence and good standing of the Adviser and the
A-2
payment of franchise taxes is based solely on a certificate of legal existence
issued by the Secretary of State of the State of Delaware, a copy of which has
been made available to your counsel, and our opinion with respect to such
matters is rendered as of the date of such certificate and limited accordingly.
We express no opinion as to the tax good standing of the Trust or the Adviser in
any jurisdiction.
In connection with our opinion expressed in paragraph 2 below, insofar as it
relates to full payment for the outstanding common shares, no par value, of the
Trust (the "Common Shares"), we have relied solely on a certificate of an
officer of the Trust. Our opinion expressed in paragraph 2 below as to the
Common Shares outstanding on the date of the Prospectus is based solely on a
certificate of the Trust's transfer agent, which we assume to be complete and
accurate. Our opinion expressed in paragraph 2 below as to the due and valid
issuance of the Common Shares is based solely on a review of the corporate
minute books of the Trust, and a certificate of an officer of the Trust, each of
which we assume to be complete and accurate.
Our opinion expressed in paragraph 6 below as to the effectiveness of the
Registration Statement under the Securities Act is based solely upon oral advice
from a member of the staff at the Division of Investment Management of the
Commission that the Registration Statement was declared effective as of [10:00]
a.m., Eastern time, on March 10, 2005. Our opinion in paragraph 17 below is
based solely upon the Commission's Investment Adviser Public Disclosure Website
as of the date of this opinion.
Our opinion expressed in paragraph 11 below is based solely upon a certificate
of an officer of the Trust.
We express no opinion herein as to the laws of any jurisdiction other than the
state laws of The Commonwealth of Massachusetts, the Delaware Statutory Trust
Act statute, the Delaware General Corporation Law statute and the federal laws
of the United States of America. To the extent that any other laws of any other
jurisdiction govern any of the matters as to which we express an opinion below,
we have assumed for purposes of this opinion, with your permission and without
independent investigation, that the laws of such jurisdiction are identical to
the state laws of The Commonwealth of Massachusetts, and we express no opinion
as to whether such assumption is reasonable or correct. We note that the
Purchase Agreement is governed by New York law. We express no opinion with
respect to (i) the securities or Blue Sky laws of any state or other
jurisdiction of the United States or of any foreign jurisdiction or (ii) the
By-Laws or any rules or other regulations of the National Association of
Securities Dealers, Inc. In addition, we express no opinion and, except as set
forth below in the second to last paragraph hereof, make no statement herein
with respect to the antifraud laws of any jurisdiction.
On the basis of and subject to the foregoing, we are of the opinion that:
1. The Trust is validly existing as a statutory trust in good standing
under the laws of the State of Delaware and has statutory trust power and
authority to carry on its business and own, lease and operate its properties as
such business and properties are described in the Prospectus and to enter into
and perform its obligations under the Purchase Agreement. No franchise taxes
that are currently due with respect to the Trust have not been paid.
2. The authorized, issued and outstanding shares of beneficial interest of
the Trust as of the date of the Prospectus are as set forth in the Prospectus
under the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the Purchase Agreement); all issued and outstanding Common Shares as
of the date hereof have been duly authorized, validly issued, are fully paid and
non-assessable and have been sold either to the Adviser pursuant to an exemption
from registration under the Securities Act, pursuant to an offering of the
Trust's Common Shares registered under the Securities Act or issued in
accordance with the Trust's Dividend Reinvestment Plan; and the Trust's Common
Shares are not and will not be subject to any preemptive or similar statutory
rights under the Delaware Statutory Trust Act statute or, to our knowledge,
similar contractual rights granted by the Trust.
A-3
3. The Shares have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor as provided by the Purchase Agreement,
will be validly issued and fully paid and non-assessable and no holder of the
Shares is or will be subject to personal liability under the Declaration of
Trust or the Delaware Statutory Trust Act by reason of being such a holder.
4. The issuance of Shares will not be subject to any preemptive or similar
statutory rights under the Delaware Statutory Trust Act statute or under the
Declaration of Trust or, to our knowledge, similar contractual rights granted by
the Trust.
5. The Purchase Agreement has been duly authorized, executed and delivered
by the Trust.
6. The Registration Statement has become effective under the Securities
Act. Any required filing of the Prospectus pursuant to Rule 497(c) or Rule
497(h) has been made in the manner and within the time period required by Rule
497. To our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act. To our
knowledge, (i) no order of suspension or revocation of registration pursuant to
Section 8(e) of the Investment Company Act of 1940, as amended, and the rules
and regulations thereunder (the "1940 Act") has been issued, and (ii) no
proceedings for any such purpose have been instituted or are pending or
threatened by the Commission.
7. To our knowledge, there are no legal or governmental proceedings
pending or threatened against the Trust.
8. The statements in the Prospectus under the captions "Description of
AMPS," "The Auction" and "Federal Income Tax Matters," in Item 29 of Part C of
the Registration Statement, and the section of the Statement of Additional
Information entitled "Federal Income Tax Matters," insofar as such statements
constitute matters of law or legal conclusions or are descriptions of the rights
set forth in the Declaration of Trust, the By-laws or the Statement, are correct
in all material respects.
9. Each of the Investment Advisory Agreement between the Trust and the
Adviser, dated December 22, 2004 (the "Advisory Agreement"), the Investment
Subadvisory Agreement between the Investment Adviser and the Subadviser, dated
December 22, 2004 (the "Subadvisory Agreement"), the Administration Agreement
among the Trust and the Adviser, dated as of December 22, 2004 (the
"Administration Agreement"), the Custodian Agreement, dated as of July 1, 2001,
among Brown Brothers ▇▇▇▇▇▇▇▇ & Co. and the Pioneer funds named therein,
supplemented as of November 23, 2004 to add the Trust as a party thereto (the
"Custodian Agreement), the Investment Company Service Agreement, dated December
22, 2004, between the Trust and Pioneer Investment Management Shareholder
Services, Inc. (the "Transfer Agency Agreement"), the Expense Limitation
Agreement, dated as of December 22, 2004, between the Trust and the Adviser (the
"Expense Limitation Agreement"), the Auction Agency Agreement between the Trust
and Deutsche Bank Trust Company Americas, dated as of March 14, 2005 (the
"Auction Agency Agreement") and the Purchase Agreement do not violate the 1940
Act, the Investment Advisers Act of 1940, as amended, and the rules and
regulations thereunder (the "Advisers Act").
10. The Trust is registered with the Commission under the 1940 Act as a
closed-end non-diversified management investment company. To our knowledge, no
order of suspension or revocation of such registration has been issued or
proceedings therefor initiated or, to our knowledge, threatened by the
Commission.
11. To our knowledge, no person affiliated with the Adviser is serving as
an officer, trustee or investment adviser of the Trust except in accordance with
the 1940 Act and the Advisers Act. Except as disclosed in the Registration
Statement and Prospectus (or any amendment or supplement to either of them), to
our knowledge, no Trustee of the Trust is an "interested person" (as defined in
the 1940 Act) of the Trust or an "affiliated person" (as defined in the 1940
Act) of an Underwriter.
A-4
12. The execution and delivery of the Purchase Agreement by the Trust, the
compliance by the Trust with all the provisions thereof and the consummation by
the Trust of the transactions contemplated thereby (including the issuance and
sale of the Shares and the use of the proceeds from the sale of the Shares as
described in the Prospectus under the caption "Use of Proceeds") do not and will
not (A) require any consent, approval, authorization or other order of, or
qualification with, any Massachusetts state or U.S. federal court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states or the National Association of Securities
Dealers, Inc. or as have been obtained under the federal securities laws), (B)
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, or result in the imposition of a lien, charge or encumbrance upon
the assets of the Trust pursuant to any indenture, loan agreement, mortgage,
lease or other agreement or instrument listed in the certificate attached hereto
as Annex A, (C) violate or conflict with the Declaration of Trust, the By-laws
or the Statement, (D) violate or conflict with the Delaware Statutory Trust Act
statute or any applicable U.S. federal or Massachusetts state law, rule or
regulation which in our experience is normally applicable in transactions of the
type contemplated by the Purchase Agreement, or (E) violate or conflict with any
judgment, order or decree specifically naming the Trust or specifically
applicable to the Trust's property and of which we are aware.
13. Each of the Advisory Agreement, the Administration Agreement, the
Custodian Agreement, the Expense Limitation Agreement, the Transfer Agency
Agreement and the Auction Agency Agreement has been duly authorized by all
requisite action on the part of the Trust and executed and delivered by the
Trust, as of the dates noted therein. Assuming due authorization, execution and
delivery by the other parties thereto with respect to the Administration
Agreement, Custodian Agreement, the Transfer Agency Agreement and the Auction
Agency Agreement, each of the Advisory Agreement, the Administration Agreement,
the Custodian Agreement, the Expense Limitation Agreement, the Transfer Agency
Agreement and the Auction Agency Agreement constitutes a valid and binding
agreement of the Trust, enforceable against the Trust in accordance with their
respective terms.
14. The form of certificate used to evidence the Shares complies in all
material respects with all applicable requirements of the Delaware Statutory
Trust Act statute, with any applicable requirements of the Declaration of Trust
and Trust By-Laws.
15. The Adviser is validly existing as a corporation in good standing
under the laws of the State of Delaware. No franchise taxes that are currently
due with respect to the Adviser have not been paid.
16. The Adviser has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
17. The Adviser is registered with the Commission as an investment adviser
under the Advisers Act and is not prohibited by the Advisers Act or the 1940 Act
from acting under the Advisory Agreement for the Trust as contemplated by the
Prospectus.
18. The Purchase Agreement, the Advisory Agreement, the Subadvisory
Agreement, the Expense Limitation Agreement and the Administration Agreement
have been duly authorized, executed and delivered by the Adviser, and each of
the Advisory Agreement, the Subadvisory Agreement, the Expense Limitation
Agreement and the Administration Agreement constitutes a valid and binding
obligation of the Adviser, enforceable in accordance with their respective
terms.
19. To our knowledge, there is no legal or governmental proceeding pending
or threatened against the Adviser that is: (1) required by the Securities Act or
the 1940 Act and their rules and regulations to be described in the Registration
Statement in the Prospectus that is not already described, or (2) which would,
under Section 9 of the 1940 Act, make the Adviser ineligible to act as the
Trust's investment adviser.
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20. The execution and delivery of each of the Purchase Agreement, the
Advisory Agreement and the Subadvisory Agreement by the Adviser, and the
consummation by the Adviser of the transactions contemplated thereby, do not and
will not (A) require any consent, approval, authorization or other order of, or
qualification with, any Massachusetts state or U.S. federal court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states of the National Association of Securities
Dealers, Inc. or as have been obtain under the federal securities laws), (B)
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, or result in the imposition of a lien, charge or encumbrance upon
the assets of the Adviser pursuant to any indenture, loan agreement, mortgage,
lease or other agreement or instrument listed in the certificate attached as
Annex B hereto, (C) violate or conflict with the Certificate of Incorporation or
By-laws of the Adviser, or (D) violate or conflict with the Delaware General
Corporation Law statute or any applicable U.S. federal and Massachusetts state
law, rule or regulation which in our experience is normally applicable in
transactions of the type contemplated by the Purchase Agreement, or (E) violate
or conflict with any judgment, order or decree specifically naming the Adviser
or specifically applicable to the Adviser's property of which we are aware.
The foregoing opinions are provided to you as Representative of the
Underwriters, as a legal opinion only and not as a guaranty or warranty of the
matters discussed herein. These opinions are based upon currently existing
statutes, rules, regulations and judicial decisions and are rendered as of the
date hereof, and we disclaim any obligation to advise you of any change in any
of the foregoing sources of law or subsequent developments in law or changes in
facts or circumstances which might affect any matters or opinions set forth
herein.
In addition to the opinions provided above, we wish to confirm to you:
In connection with the preparation of the Registration Statement, the
Prospectus and the Statement of Additional Information, we have participated in
conferences with officers and representatives of the Trust and the Adviser,
representatives of and counsel for the Underwriters, and representatives of the
independent accountants of the Trust, during which the contents of the
Registration Statement, the Prospectus and the Statement of Additional
Information were discussed. While the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process are such that we are not passing upon and do not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Prospectus or the Statement of
Additional Information (except to the extent expressly set forth in paragraph 8
above), subject to the foregoing and based on such participation, we advise you
that (a) the Registration Statement, including any Rule 430A Information, the
Prospectus and each amendment or supplement to the Registration Statement and
Prospectus as of their respective effective or issue dates (except for the
financial statements, including the notes and schedules thereto, and other
financial and accounting data and information included therein or omitted
therefrom, as to which we express no view), and the notification on Form N-8A,
as amended, appear on their face to be appropriately responsive in all material
respects to the requirements of the Securities Act, the 1940 Act and the
applicable rules and regulations of the Commission thereunder, (b) no facts have
come to our attention which have caused us to believe that (i) the Registration
Statement, as of the Effective Date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading
(except as set forth in the parenthetical in clause (a) above), or (ii) the
Prospectus and the Statement of Additional Information, as of the date filed
with the Commission pursuant to Rule 497 under the Securities Act or as of the
date hereof, contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading (except as
set forth in the parenthetical in clause (a) above).
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This letter is rendered only to you, as Representative of the Underwriters and
is solely for the benefit of the Underwriters in connection with the
transactions contemplated in the Purchase Agreement. This letter may not be
relied upon by the Underwriters for any other purpose, nor may this opinion be
provided to, quoted to or relied upon by any other party or entity for any
purpose without our prior written consent, except that (i) we understand that
Clifford Chance US LLP, in delivering their opinion pursuant to Section 5(c) of
the Purchase Agreement, is relying upon our opinions expressed in paragraphs 1,
3, 4, 5, 6, 8, 13 and 14 and (ii) we understand that ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ & ▇▇▇▇▇
LLP, in delivering their opinions pursuant to Section 5(b) of the Purchase
Agreement, is relying upon our opinion as to matters of the laws of the
Commonwealth of Massachusetts to the extent included in this letter.
Best regards,
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ AND ▇▇▇▇ LLP
By:
-------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Partner
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Exhibit B
FORM OF OPINION OF INVESTMENT MANAGER'S
COUNSEL TO BE DELIVERED PURSUANT TO
SECTION 5(b)
March 11, 2005
Ladies and Gentlemen:
We have acted as counsel to Highland Capital Management, L.P. (the "Subadviser")
in its capacity as investment subadviser to the Pioneer Floating Rate Trust, a
Delaware statutory trust (the "Fund"), in connection with the issuance of the
Fund's preferred shares of beneficial interest pursuant to the Purchase
Agreement dated March 9, 2005 (the "Purchase Agreement") among the Fund, Pioneer
Investment Management, Inc. ("Pioneer"), the Subadviser and you, as
representative of the several Underwriters named in Schedule A attached thereto.
Capitalized terms used in this opinion, unless otherwise defined herein, have
the meaning specified in the Purchase Agreement.
We have reviewed the Purchase Agreement and the Sub-Advisory Agreement dated as
of December [__], 2004 (the "Sub-Advisory Agreement") between Pioneer and the
Subadviser. We have also reviewed the information set forth under the captions
identified below (to the extent that such information describes the Subadviser,
the Sub-Advisory Agreement and the duties of the Subadviser under the
Sub-Advisory Agreement) (the "Subadviser Information") contained in (i)
Amendment No. [__] to the Fund's Registration Statement on Form N-2 (File Nos.
333-121930 and 811-21654) (the "Registration Statement") as filed with the
Securities and Exchange Commission and as it became effective under the
Securities Act of 1933, as amended (the "Securities Act"), and (ii) the Fund's
prospectus and statement of additional information, each dated March [__], 2005,
filed by the Fund pursuant to Rule 497(h) under the Securities Act: "Prospectus
Summary - Investment Objectives and Principal Investment Strategies,"
"Prospectus Summary - Investment Adviser" and "Management of the Fund -
Investment Adviser and Subadviser" in the Fund's prospectus; and "Management of
the Fund - Investment Subadviser" and "Management of the Fund - Subadvisory Fee"
in the Fund's statement of additional information. The Fund's prospectus and
statement of additional information are collectively referred to herein as the
"Prospectus."
We also have examined original or reproduced or certified copies of all such
other records of the Subadviser, certificates of public officials, certificates
of officers and representatives of the Subadviser and others, and such other
documents, papers, statutes and authorities, and have made such examination of
law, as we have deemed necessary to form the basis of the opinions hereinafter
set forth. In such examinations, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as copies
thereof. As to various questions of fact relevant to this opinion, we have
relied upon statements and certificates of officers and representatives of the
Subadviser and others and upon the representations and warranties of the
Subadviser set forth in the Purchase Agreement.
When reference is made in this opinion to "knowledge" or to what is "known to
us," such reference shall mean the actual knowledge attributable to our
representation of the Subadviser of only those partners and
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associates currently employed by us who have given substantive attention to the
Sub-Advisory Agreement, the Purchase Agreement, the Registration Statement and
the Prospectus. Our knowledge encompasses only such matters as have come to the
attention of the aforementioned partners and associates through their
involvement in such transactions and is based in large part on inquiries we have
made to and responses received from officers and representatives of the
Subadviser and from our review of documents furnished to us by such persons in
response to such inquiries.
For purposes of paragraph 6, we have assumed that the Sub-Advisory Agreement has
been duly authorized, executed and delivered by the parties other than the
Subadviser. For purposes of clause (ii) of paragraph 9, the contracts,
indentures, mortgages, loan and credit agreements, leases and other agreements
to which the Subadviser is a party of which we have knowledge are those
agreements identified to us by the Subadviser and which are listed on Schedule I
hereto.
Attorneys involved in the preparation of this opinion are admitted to practice
law in the State of New York and we express no opinion except as to (i) United
States Federal law, (ii) the laws of the State of New York and (iii) the
Delaware Revised Uniform Limited Partnership Act. For purposes of rendering the
opinion contained in paragraph 6, with your permission we have assumed that the
laws of the Commonwealth of Massachusetts are the same as the laws of the State
of New York. Based on the foregoing, we are of the following opinions:
1. The Subadviser has been duly organized and is a validly existing
limited partnership in good standing under the laws of the State of
Delaware.
2. The Subadviser is duly qualified to do business in each jurisdiction
in which the ownership of its properties, or the conduct of its
business requires it to be so qualified, except where the failure to
so qualify would not result in a material adverse effect with
respect to the Subadviser.
3. The Subadviser has the limited partnership power and authority to
own, lease and operate its properties and assets and to conduct the
business in which it currently engages as described in the
Prospectus and to execute, deliver and perform its obligations under
the Purchase Agreement.
4. The Subadviser is duly registered as an investment adviser under the
Investment Advisers Act of 1940, as amended (the "Advisers Act"),
and is not prohibited by the Advisers Act, the Investment Company
Act of 1940, as amended (the "Investment Company Act"), or the rules
and regulations of the Securities and Exchange Commission thereunder
from acting under the Sub-Advisory Agreement for the Fund as
contemplated by the Prospectus.
5. The Subadviser (i) has taken all necessary action to authorize the
execution, delivery and performance of the Purchase Agreement and
the Sub-Advisory Agreement, and (ii) has duly executed and delivered
the Purchase Agreement and the Sub-Advisory Agreement.
6. Subject to the qualifications stated hereunder, the Sub-Advisory
Agreement is a legal, valid and binding obligation of the
Subadviser, enforceable against the Subadviser in accordance with
its terms.
7. To our knowledge, there is no legal or governmental proceeding
pending or threatened against the Subadviser that is required to be
disclosed in the Registration Statement or the Prospectus that is
not already disclosed or which would, under Section 9 of the
Investment Company Act, make the Subadviser ineligible to act as the
Fund's investment subadviser.
8. No consent, authorization, license, exemption or approval by, or
filing with, any Federal, New York or Delaware governmental
authority is required to be obtained or made by the Subadviser in
connection with the execution, delivery or performance of its
obligations under the Purchase Agreement other than any approvals or
filings that have been previously obtained or made or that are in
full force and effect.
9. The execution and delivery of the Purchase Agreement by the
Subadviser does not, and the consummation by the Subadviser of the
transactions contemplated thereby will not: (i) violate the
Agreement of Limited Partnership of the Subadviser; (ii) conflict
with, or result in any breach of any terms, conditions or provisions
of, or constitute a default under or result in or permit the
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creation or imposition of any lien, charge or encumbrance upon any
of the properties of the Subadviser pursuant to any contract,
indenture, mortgage, loan or credit agreement, lease or other
agreement to which the Subadviser is a party of which we have
knowledge; or (iii) contravene or violate any provision of law,
statute, rules or regulations, or, to our knowledge, any applicable
order, writ, injunction, judgment or decree binding on the
Subadviser.
10. Nothing has come to our attention that would lead us to believe that
the Subadviser Information contained in the Registration Statement
or any amendment thereto (except for financial statements and
schedules and other financial data included therein or omitted
therefrom, as to which we do not make any statement), at the time
the Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Subadviser
Information contained in the Prospectus or any amendment or
supplement thereto (except for financial statements and schedules
and other financial data included therein or omitted therefrom, as
to which we do not make any statement), at the time the Prospectus
was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
Our opinion that the Sub-Advisory Agreement is a legal, valid and binding
obligation, enforceable in accordance with its terms, is subject to (i)
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights and remedies of creditors, and (ii) general principles of
equity, regardless of whether applied in proceedings in equity or at law.
Our opinions expressed above are subject to the following qualifications:
a. The enforceability of the provisions of the Sub-Advisory Agreement
providing for indemnification may be affected by public policy
considerations or court decisions which may limit the right of the
indemnified party to obtain indemnification.
b. We express no opinion as to the enforceability of provisions
relating to submission to jurisdiction.
c. We express no opinion as to the enforceability of provisions
providing for the non-effectiveness of oral modifications.
The foregoing opinion is solely for your benefit and may not be relied on by any
person other than you without our express written consent.
Very truly yours,
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Schedule I
[TO BE UPDATED AS NECESSARY]
1. Collateral Management Agreement between ML CBO IV (Cayman) Ltd., and
Protective Asset Management, L.L.C., dated December 17, 1996.
2. Agreement of Limited Partnership of Ranger Asset Management, L.P.,
dated July 7, 1997.
3. Collateral Management Agreement among PamCo Cayman Ltd., Ranger
Asset Management, L.P., d/b/a Protective Asset Management Company,
and Strand Advisors, Inc., dated August 6, 1997.
4. Amended and Restated Agreement of Limited Partnership of Ranger
Asset Management, L.P., dated July 28, 1997.
5. First Amendment to Amended and Restated Limited Partnership
Agreement of Ranger Asset Management, L.P., dated September 1, 1997.
6. Collateral Management Agreement among ▇▇▇ Capital Funding L.P.,
Ranger Asset Management, L.P., d/b/a Protective Asset Management
Company, and Strand Advisors, Inc., dated May 19, 1998.
7. Collateral Management Agreement among Highland Legacy Limited,
Highland Capital Management, L.P., and Strand Advisors, Inc., dated
August 18, 1999.
8. Investment Management Agreement between Enhanced Loan Facility I,
Ltd. and Highland Capital Management, L.P., dated October 21, 1999.
9. Portfolio Management Agreement between Structured Enhanced Return
Vehicle Trust, Series 2000-1 and Highland Capital Management, L.P.,
dated January 1, 2000.
10. Advisory Agreement between Highland Capital Management, L.P. and
Prospect Street High Income Portfolio Inc., dated January 21, 2000.
11. Limited Partnership Agreement of Highland Commingled Loan Fund,
L.P., dated January 28, 2000.
12. Amended and Restated Limited Partnership Agreement of Highland
Crusader Fund, L.P., dated March 15, 2004.
13. Investment Management Agreement between Enhanced Loan Facility
2000-1, Ltd. and Highland Capital Management, L.P., dated July 27,
2000.
14. Investment Management Agreement among Highland Crusader Fund, Ltd.,
Highland Capital Management, L.P., and Highland Capital Management,
Ltd., dated August 1, 2000.
15. Programme Advisory Agreement among Emerald Orchard Limited, TD
Global Finance, Highland Capital Management, L.P., and The
Toronto-Dominion Bank., dated October 26, 2000.
16. Investment Management Agreement among Swiss Life Hedge Fund Partners AG,
RMF Investment Products, Swiss Life High Yield Strategies, SL Loams I
Limited, and Highland Capital Management, L.P, dated December 4, 2000.
17. Management Services Agreement between Highland Capital Management
Services, Inc. and Highland Capital Management, L.P., dated January
1, 2001.
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18. Amended and Restated Collateral Management Agreement between ML CLO
XIX Sterling (Cayman) Ltd., and Highland Capital Management, L.P.,
dated April 27, 2001.
19. Investment Advisory Agreement between Prospect Street Income Shares
Inc. and Highland Capital Management, L.P., dated July 30, 2001.
20. Collateral Management Agreement between Highland Loan Funding V Ltd.
and Highland Capital Management, L.P., dated August 1, 2001.
21. Limited Partnership Agreement of Highland Equity Fund, L.P., dated
January 1, 2002.
22. Investment Management Agreement among Highland Crusader Fund II,
Ltd., Highland Capital Management, L.P., and Highland Capital
Management, Ltd., dated January 21, 2002.
23. Collateral Management Agreement among Restoration Funding CLO, Ltd.,
Highland Capital Management, L.P., and Strand Advisors, Inc., dated
February 19, 2002.
24. The State of California Standard Agreement, by and between The
California Public Employees Retirement System and Highland Capital
Management, L.P., dated February 1, 2002.
25. Investment Management Agreement among Highland Capital Management,
L.P., Highland Real Estate Fund 2002-A, L.P., and Highland Capital
Advisors RE2002-A, LLC, dated April 1, 2002.
26. Investment Management Agreement between Highland Capital Management,
L.P. and Highland CDO and Structured Products Fund, Ltd., dated May
7, 2002.
27. Limited Partnership Agreement of Highland Equity Focus Fund, L.P.,
dated June 17, 2002.
28. Limited Partnership Agreement of Highland Enhanced Loan Fund, L.P.,
dated October 18, 2002.
29. Assumption Agreement of Managed Accounts Limited between RMF Global
High Yield Strategies Limited and HCM US Loans MAC 43 Ltd., dated
September 19, 2003.
30. Purchase Agreement among PFPC Distributors, Inc., as Seller, and
Dallas Lease and Finance, Inc., as Purchaser, dated June 14, 2004.
31. Investment Management Agreement by and between ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇
Incorporated, as Investment Manager and Aurum CLO 2002-1 Ltd., as
Issuer, dated June 25, 2002.
32. Management Agreement by and between ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇ CLO I Ltd.,
Issuer and ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇ Incorporated, Portfolio Manager,
dated August 25, 1999.
33. Portfolio Management Agreement by and between Structured Enhanced Return
Vehicle Trust, Series 1999-1, the Issuer and ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇
Incorporated, the Portfolio Manager, dated February 1, 1999.
34. Portfolio Management Agreement by and between Structured Enhanced Return
Vehicle Trust, Series 2000-2, the Issuer and ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇
Incorporated, the Portfolio Manager, dated June 1, 2000.
35. Amended and Restated Promissory Agreement by Highland Capital
Management, L.P., to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners, L.P., dated
April 30, 2004.
36. Credit Agreement among Highland Capital Management .L.P. and The
Bank of Nova Scotia, dated as of May 18, 2004.
37. Guaranty Agreement among Highland Equity Fund, L.P., Highland Equity
Focus Fund, LP, and Highland Enhanced Loan Fund, LP, in favor of The
Bank of Nova Scotia, dated as of May 18, 2004.
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38. The Pledge and Security Agreement, by and among parties identified as
"Grantors" and The Bank of Nova Scotia, as "Collateral Agent," dated as of
May 18, 2004.
39. Revolving Credit Note between Highland Capital Management, L.P. and
The Bank of Nova Scotia, dated as of May 27, 2004.
40. Subordination Agreement among Highland Capital Management, L.P., The
Bank of Nova Scotia and Highland Capital Management Services, Inc.,
dated as of May 18, 2004.
41. Second Amendment to the Amended and Restated Agreement of Limited
Partnership of Highland Capital Management, L.P., dated May 27, 2004.
42. Asset Purchase Agreement between Columbia Management Advisors, Inc.
and Highland Capital Management, L.P., dated April 9, 2004.
43. Limited Partnership Agreement of Highland Crusader Fund, L.P., dated
June 28, 2000.
44. Financial Agency Agreement among Highland CDO and Structured
Products, Ltd., Highland Capital Management, L.P., and ▇.▇. ▇▇▇▇▇▇
▇▇▇▇▇ Bank, dated February 23, 2004.
45. Financial Agency Agreement among Highland Commingled Loan Fund,
Ltd., Highland Capital Management, L.P., and ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank,
dated February 23, 2004.
46. Financial Agency Agreement among Highland Crusader Fund, Ltd.,
Highland Capital Management, L.P., and ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, dated
February 23, 2004.
47. Financial Agency Agreement among Highland Crusader Offshore
Partners, L.P., Highland Capital Management, L.P., and ▇.▇. ▇▇▇▇▇▇
▇▇▇▇▇ Bank, dated February 23, 2004.
48. Financial Agency Agreement among Highland Offshore Partners, L.P.,
Highland Capital Management, L.P., and ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, dated
February 23, 2004.
49. Investment Management Agreement between ▇.▇. ▇▇▇▇▇▇ Trust Company
(Cayman) Limited, in its capacity as Loan Star State Trust, and
Highland Capital Management, L.P. dated as of July 30, 2004.
50. Advisory Agreement by and between Highland Capital Management, L.P.
and Highland Floating Rate Advantage Fund, dated July 30, 2004.
51. Advisory Agreement by and between Highland Capital Management, L.P.
and Highland Floating Rate Limited Liability Company, dated July 30,
2004.
52. Amended and Restated Letter Agreement between Highland Capital
Management, L.P. and Citicorp North America, Inc., as agent on
behalf of the secured parties identified therein, dated October 18,
2004.
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