EXHIBIT K.5
PIMCO MUNICIPAL INCOME FUND
___________________________
AUCTION AGENCY AGREEMENT
dated as of __________ ___, 2001
Relating to
Auction Preferred Shares
Series A, B, C, D and E
of
PIMCO MUNICIPAL INCOME FUND
___________________________
BANKERS TRUST COMPANY,
as Auction Agent
AUCTION AGENCY AGREEMENT
This Auction Agency Agreement (this "Agreement"), dated as of __________
___, 2001, is between PIMCO Municipal Income Fund (the "Fund") and Bankers Trust
Company, a New York banking corporation.
The Fund proposes to issue an aggregate of __________ preferred shares, no
par value, liquidation preference $25,000 per share, designated as Auction
Preferred Shares, Series A Auction Preferred Shares, Series B Auction Preferred
Shares, Series C Auction Preferred Shares, Series D Auction Preferred Shares and
Series E Auction Preferred Shares (the "Preferred Shares"), pursuant to the
Fund's Amended and Restated Bylaws (as defined below).
The Fund desires that Bankers Trust Company perform certain duties as agent
in connection with each Auction (as defined below) of Preferred Shares (in such
capacity, the "Auction Agent"), and as the transfer agent, registrar, dividend
paying agent and redemption agent with respect to the Preferred Shares (in such
capacity, the "Paying Agent"), upon the terms and conditions of this Agreement,
and the Fund hereby appoints Bankers Trust Company as said Auction Agent and
Paying Agent in accordance with those terms and conditions (hereinafter
generally referred to as the "Auction Agent," except in Sections 3 and 4 below).
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Fund and the Auction Agent agree as follows:
I. DEFINITIONS AND RULES OF CONSTRUCTION.
1.1 Terms Defined by Reference to the Amended and Restated Bylaws.
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Capitalized terms not defined herein shall have the respective meanings
specified in the Amended and Restated Bylaws.
1.2 Certain Defined Terms.
----------------------
As used herein and in the Settlement Procedures (as defined below), the
following terms shall have the following meanings, unless the context otherwise
requires:
(a) "Agent Member" shall mean a member of the Securities Depository that
will act on behalf of a Beneficial Owner of one or more Preferred Shares or on
behalf of a Potential Beneficial Owner.
(b) "Auction" shall have the meaning specified in Section 2.1 hereof.
(c) "Auction Procedures" shall mean the procedures as from time to time
in effect for conducting Auctions that are set forth in Section 11.10 of the
Amended and Restated Bylaws.
(d) "Authorized Officer" shall mean each Managing Director, Vice
President, Assistant Vice President and Associate of the Auction Agent and every
other officer or employee of the Auction Agent designated as an "Authorized
Officer" for purposes hereof in a written communication from the Auction Agent
to the Fund.
(e) "Amended and Restated Bylaws" shall mean the Amended and Restated
Bylaws of the Fund in effect at the time the Registration Statement relating to
the Preferred Shares is declared effective by the Securities and Exchange
Commission, specifying the powers, preferences and rights of the Preferred
Shares.
(f) "Broker-Dealer Agreement" shall mean each agreement between the
Auction Agent and a Broker-Dealer substantially in the form attached hereto
as Exhibit A.
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(g) "Closing" shall mean the date the Fund consummates the transactions
for the issuance and sale of the Preferred Shares.
(h) "Fund Officer" shall mean the Chairman, the President, each Vice
President (whether or not designated by a number or word or words added before
or after the title "Vice President"), the Secretary, the Treasurer, each
Assistant Secretary and each Assistant Treasurer of the Fund and every other
officer or employee of the Fund designated as a "Fund Officer" for purposes
hereof in a notice from the Fund to the Auction Agent.
(i) "Holder" shall be a holder of record of one or more Preferred
Shares, listed as such in the Share Register.
(j) "Interest Equivalent" means a yield on a 365-day basis of a discount
basis security which is equal to the yield on an equivalent interest-bearing
security.
(k) "Settlement Procedures" shall mean the Settlement Procedures
attached as Exhibit A to the Broker-Dealer Agreement.
1.3 Rules of Construction.
----------------------
Unless the context or use indicates another or different meaning or intent,
the following rules shall apply to the construction of this Agreement:
(a) Words importing the singular number shall include the plural number
and vice versa.
(b) The captions and headings herein are solely for convenience of
reference and shall not constitute a part of this Agreement nor shall they
affect its meaning, construction or effect.
(c) The words "hereof," "herein," "hereto," and other words of similar
import refer to this Agreement as a whole.
(d) All references herein to a particular time of day shall be to New
York City time.
II. THE AUCTION.
2.1 Purpose; Incorporation by Reference of Auction Procedures and
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Settlement Procedures.
---------------------
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(a) The Board of Trustees of the Fund has adopted a resolution
appointing Bankers Trust Company as Auction Agent for purposes of the Auction
Procedures. The Auction Agent hereby accepts such appointment and agrees that,
on each Auction Date, it shall follow the procedures set forth in this Section 2
and the Auction Procedures for the purpose of determining the Applicable Rate
for the Preferred Shares for the next Dividend Period. Each periodic operation
of such procedures is hereinafter referred to as an "Auction."
(b) All of the provisions contained in the Auction Procedures and in the
Settlement Procedures are incorporated herein by reference in their entirety and
shall be deemed to be a part hereof to the same extent as if such provisions
were set forth fully herein.
2.2 Preparation for Each Auction; Maintenance of Registry of Existing
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Holders.
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(a) As of the date hereof, the Fund shall provide the Auction Agent with
a list of the Broker-Dealers previously approved by the Auction Agent and shall
cause to be delivered to the Auction Agent for execution by the Auction Agent a
Broker-Dealer Agreement signed by each such Broker-Dealer. The Auction Agent
shall keep such list current and accurate and shall indicate thereon, or on a
separate list, the identity of each Existing Holder, if any, whose most recent
Order was submitted by a Broker-Dealer on such list and resulted in such
Existing Holder continuing to hold or purchase Preferred Shares. Not later than
five Business Days prior to any Auction Date for which any change in such list
of Broker-Dealers is to be effective, the Fund shall notify the Auction Agent in
writing of such change and, if any such change is the addition of a Broker-
Dealer to such list, the Fund shall cause to be delivered to the Auction Agent
for execution by the Auction Agent a Broker-Dealer Agreement signed by such
Broker-Dealer. The Auction Agent shall have entered into a Broker-Dealer
Agreement with each Broker-Dealer prior to the participation of any such Broker-
Dealer in any Auction.
(b) In the event that the Auction Date for any Auction shall be changed
after the Auction Agent shall have given the notice referred to in clause (vii)
of paragraph (a) of the Settlement Procedures, the Auction Agent, by such means
as the Auction Agent deems practicable, shall give notice of such change to the
Broker-Dealers not later than the earlier of 9:15 a.m. on the new Auction Date
or 9:15 a.m. on the old Auction Date.
(c) The provisions contained in Section 11.2 of the Amended and Restated
Bylaws concerning Special Dividend Periods and the notification of a Special
Dividend Period will be followed by the Fund and, to the extent applicable, the
Auction Agent, and the provisions contained therein are incorporated herein by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions were set forth fully herein.
(d) (i) On each Auction Date, the Auction Agent shall determine the
Maximum Applicable Rate. Not later than 9:30 a.m. on each Auction Date, the
Auction Agent shall notify the Fund and the Broker-Dealers of the Maximum
Applicable Rate.
(ii) If the Reference Rate is the applicable "AA" Composite
Commercial Paper Rate and such rate is to be based on rates supplied by
Commercial Paper Dealers and one or more of the Commercial Paper Dealers shall
not provide a quotation for the determination of the applicable "AA" Financial
Composite Commercial Paper Rate, the Auction
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Agent immediately shall notify the Fund so that the Fund can determine whether
to select a substitute Commercial Paper Dealer or substitute Commercial Paper
Dealers to provide the quotation or quotations not being supplied by any
Commercial Paper Dealer or Commercial Paper Dealers. The Fund promptly shall
advise the Auction Agent of any such selection. If the Fund does not select any
such substitute Commercial Paper Dealer or substitute Commercial Paper Dealers,
then the rates shall be supplied by the remaining Commercial Paper Dealer or
Commercial Paper Dealers.
(e) (i) The Auction Agent shall maintain a current registry of the
Existing Holders of the Preferred Shares for purposes of each individual
Auction. The Fund shall use commercially reasonable efforts to provide or cause
to be provided to the Auction Agent within ten Business Days following the date
of the Closing a list of the initial Existing Holders of Preferred Shares, and
the Broker-Dealer of each such Existing Holder through which such Existing
Holder purchased such shares. The Auction Agent may rely upon, as evidence of
the identities of the Existing Holders, such list, the results of each Auction
and notices from any Existing Holder, the Agent Member of any Existing Holder or
the Broker-Dealer of any Existing Holder with respect to such Existing Holder's
transfer of any Preferred Shares to another Person.
(ii) In the event of any partial redemption of Preferred Shares,
upon notice by the Fund to the Auction Agent of such partial redemption, the
Auction Agent promptly shall request the Securities Depository to notify the
Auction Agent of the identities of the Agent Members (and the respective numbers
of shares) from the accounts of which shares have been called for redemption and
the person or department at such Agent Member to contact regarding such
redemption. At least two Business Days prior to the Auction preceding the date
of redemption, the Auction Agent shall request each Agent Member so identified
to disclose to the Auction Agent (upon selection by such Agent Member of the
Existing Holders whose shares are to be redeemed) the number of Preferred Shares
of each such Existing Holder, if any, to be redeemed by the Fund, provided that
the Auction Agent has been furnished with the name and telephone number of a
person or department at such Agent Member from which it is to request such
information. In the absence of receiving any such information with respect to an
Existing Holder, from such Existing Holder's Agent Member or otherwise, the
Auction Agent may continue to treat such Existing Holder as having ownership of
the number of Preferred Shares shown in the Auction Agent's registry of Existing
Holders.
(iii) The Auction Agent shall register a transfer of the ownership
of Preferred Shares from an Existing Holder to another Existing Holder, or to
another Person if permitted by the Fund, only if (A) such transfer is made
pursuant to an Auction or (B) if such transfer is made other than pursuant to an
Auction, the Auction Agent has been notified of such transfer in writing, in a
notice substantially in the form of Exhibit C to the Broker-Dealer Agreement, by
such Existing Holder or by the Agent Member of such Existing Holder. The Auction
Agent is not required to accept any notice of transfer delivered for an Auction
unless it is received by the Auction Agent by 12:00 noon of the Dividend Payment
Date. The Auction Agent shall rescind a transfer made on the registry of the
Existing Holders of any Preferred Shares if the Auction Agent has been notified
in writing, in a notice substantially in the form of Exhibit D to the Broker-
Dealer Agreement, by the Agent Member or the Broker-Dealer of any Person that
(i) purchased any Preferred Shares and the seller failed to deliver such shares
or
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(ii) sold any Preferred Shares and the purchaser failed to make payment to
such Person upon delivery to the purchaser of such shares.
(f) The Auction Agent may request that the Broker Dealers, as set forth
in Section 3.2(b) of the Broker-Dealer Agreements, provide the Auction Agent
with a list of their respective customers that such Broker-Dealers believe are
Beneficial Owners of Preferred Shares. The Auction Agent shall keep confidential
any such information and shall not disclose any such information so provided to
any Person other than the relevant Broker-Dealer and the Fund, provided that the
Auction Agent reserves the right to disclose any such information if it is
advised by its counsel that its failure to do so would be unlawful.
2.3 Auction Schedule.
-----------------
Subject to Article 11 of the Amended and Restated Bylaws, the Auction Agent
shall normally conduct Auctions weekly (usually Monday for Series A, Tuesday for
Series B, Wednesday for Series C, Thursday for Series D and Friday for Series E)
in accordance with the schedule set forth below. Such schedule may be changed by
the Auction Agent with the consent of the Fund, which consent shall not be
withheld unreasonably. The Auction Agent shall give notice of any such change to
each Broker-Dealer. Such notice shall be received prior to the first Auction
Date on which any such change shall be effective.
Time Event
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By 9:30 a.m. Auction Agent shall advise the Fund and
the Broker-Dealers of the Reference
Rate and the Maximum Applicable Rate as
set forth in Section 2.2(d)(i) hereof.
9:30 a.m. - 1:00 p.m. Auction Agent shall assemble
information communicated to it by
Broker-Dealers as provided in Section
11.10(c) of the Amended and Restated
Bylaws. Submission deadline is 1:00
p.m.
Not earlier than 1:00 p.m. Auction Agent shall make determinations
pursuant to Section 11.10(d)(i) of the
Amended and Restated Bylaws.
By approximately 3:00 p.m. Auction Agent shall advise the Fund of
the results of the Auction as provided
in Section 11.10(d)(ii) of the Amended
and Restated Bylaws.
Submitted Bid Orders and Submitted Sell
Orders will be accepted and rejected in
whole or in part and Preferred Shares
will be allocated as provided in
Section 11.10(e) of the Amended and
Restated Bylaws.
Auction Agent shall give notice of the
Auction results as set forth in Section
2.4 hereof.
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2.4 Notice of Auction Results.
--------------------------
The Auction Agent will advise each Broker-Dealer who submitted a Bid or
Sell Order in an Auction whether such Bid or Sell Order was accepted or rejected
in whole or in part and of the Applicable Rate for the next Dividend Period for
the related Preferred Shares by telephone or through its Auction Processing
System as set forth in paragraph (a) of the Settlement Procedures.
2.5 Broker-Dealers.
---------------
(a) Not later than 12:00 noon on each Auction Date, the Auction Agent after
each Auction will pay a service charge from funds provided by the Fund to each
Broker-Dealer on the basis of the purchase price of APS placed by such Broker-
Dealer at such Auction. The service charge shall be (i) in the case of any
Auction Date immediately preceding a seven-day Dividend Period, the product of
(A) a fraction the numerator of which is the number of days in such Dividend
Period (calculated by counting the first day of such Dividend Period but
excluding the last day thereof) and the denominator of which is 365, times (B)
1/4 of 1%, times (C) $25,000 times (D) the sum of the aggregate number of shares
of outstanding Preferred Shares for which the Auction is conducted and (ii) in
the case of any Special Dividend Period the amount determined by mutual consent
of the Fund and any such Broker-Dealer or Broker-Dealers and shall be based upon
a selling concession that would be applicable to an underwriting of fixed or
variable rate preferred shares with a similar final maturity or variable rate
dividend period, respectively, at the commencement of the Dividend Period with
respect to such Auction.
(b) The Fund shall not designate any Person to act as a Broker-Dealer, or
permit an Existing Holder or a Potential Beneficial Owner to participate in
Auctions through any Person other than a Broker-Dealer, without the prior
written approval of the Auction Agent, which approval shall not be withheld
unreasonably. The Fund may designate an Affiliate or UBS Warburg LLC to act as a
Broker-Dealer.
(c) The Auction Agent shall terminate any Broker-Dealer Agreement as set
forth therein if so directed by the Fund.
(d) Subject to Section 2.5(b) hereof, the Auction Agent from time to time
shall enter into such Broker-Dealer Agreements as the Fund shall request.
(e) The Auction Agent shall maintain a list of Broker-Dealers.
2.6 Ownership of Preferred Shares and Submission of Bids by the Fund and
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Its Affiliates.
--------------
Neither the Fund nor any Affiliate of the Fund may submit an Order in any
Auction, except that an affiliate of the Fund that is a Broker-Dealer may submit
an Order. The Fund shall notify the Auction Agent if the Fund or, to the best
of the Fund's knowledge, any Affiliate of the Fund becomes a Beneficial Owner of
any Preferred Shares. Pursuant to the Amended and Restated Bylaws of the Fund,
the Fund and the Fund's Affiliates shall be prohibited from reissuing and its
affiliates (other
6
than an Underwriter) will be prohibited from transferring (other than to the
Fund or pursuant to an Auction) any Preferred Shares they may acquire. The
restrictions in this paragraph shall in no way limit the activities of the
Auction Agent. The Auction Agent shall have no duty or liability with respect to
enforcement of this Section 2.6.
2.7 Access to and Maintenance of Auction Records.
---------------------------------------------
The Auction Agent shall afford to the Fund, its agents, independent public
accountants and counsel, access at reasonable times during normal business hours
to review and make extracts or copies (at the Fund's sole cost and expense) of
all books, records, documents and other information concerning the conduct and
results of Auctions, provided that any such agent, accountant or counsel shall
furnish the Auction Agent with a letter from the Fund requesting that the
Auction Agent afford such person access. The Auction Agent shall maintain
records relating to any Auction for a period of at least six years after such
Auction, and such records, in reasonable detail, shall accurately and fairly
reflect the actions taken by the Auction Agent hereunder. The Fund agrees to
keep confidential any information regarding the customers of any Broker-Dealer
received from the Auction Agent in connection with this Agreement or any
Auction, and shall not disclose such information or permit the disclosure of
such information without the prior written consent of the applicable Broker-
Dealer to anyone except such agent, accountant or counsel engaged to audit or
review the results of Auctions as permitted by this Section 2.7. The Fund
reserves the right to disclose any such information if it is advised by its
counsel that its failure to do so would (i) be unlawful or (ii) expose it to
liability, unless the Broker-Dealer shall have offered indemnification
satisfactory to the Fund. Any such agent, accountant or counsel, before having
access to such information, shall agree to keep such information confidential
and not to disclose such information or permit disclosure of such information
without the prior written consent of the applicable Broker-Dealer, provided that
such agent, accountant or counsel may reserve the right to disclose any such
information if it is advised by its counsel that its failure to do so would (i)
be unlawful or (ii) expose it to liability, unless the Broker-Dealer shall have
offered indemnification satisfactory to such agent, accountant or counsel.
2.8 Auction Procedures.
-------------------
The provisions contained in Section 11.10 of the Amended and Restated
Bylaws concerning Auction Procedures will be followed by the Fund and, to the
extent applicable, the Auction Agent, and the provisions contained therein are
incorporated herein by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions were set forth
fully herein.
III. THE AUCTION AGENT AS PAYING AGENT.
3.1 The Paying Agent.
-----------------
The Board of Trustees of the Fund has adopted resolutions appointing
Bankers Trust Company as Auction Agent and dividend paying agent (in such
capacity, the "Paying Agent"). The Paying Agent hereby accepts such appointment
and agrees to act in accordance with its standard procedures and the provisions
of the Amended and Restated Bylaws which are specified herein with respect to
the Preferred Shares and as set forth in this Section 3.
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3.2 The Fund's Notices to the Paying Agent.
---------------------------------------
Whenever any shares of Preferred Shares are to be redeemed, the Fund shall
mail a Notice of Redemption by first-class mail, postage prepaid, to each Holder
of Preferred Shares being redeemed and to the Paying Agent pursuant to the
Amended and Restated Bylaws.
3.3 The Fund to Provide Funds for Dividends and Redemptions.
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(a) Not later than 12:00 noon on each Dividend Payment Date, the Fund shall
deposit with the Paying Agent an aggregate amount of Federal Funds or similar
same-day funds equal to the declared dividends to be paid to Holders on such
Dividend Payment Date, and shall give the Paying Agent irrevocable instructions
to apply such funds to the payment of such dividends on such Dividend Payment
Date.
(b) If the Fund shall give a Notice of Redemption, then by noon of the date
fixed for redemption, the Fund shall deposit in trust with the Paying Agent an
aggregate amount of Federal Funds or similar same-day funds sufficient to redeem
such shares of Preferred Shares called for redemption and shall give the Paying
Agent irrevocable instructions and authority to pay the redemption price to the
Holders of shares of Preferred Shares called for redemption upon surrender of
the certificate or certificates therefor.
3.4 Disbursing Dividends and Redemption Price.
------------------------------------------
After receipt of the Federal Funds or similar same-day funds and
instructions from the Fund described in Section 3.3 above, the Paying Agent
shall pay to the Holders (or former Holders) entitled thereto (i) on each
corresponding Dividend Payment Date, dividends on the Preferred Shares, and (ii)
on any date fixed for redemption, the redemption price of any shares of
Preferred Shares called for redemption. The amount of dividends for any
Dividend Period to be paid by the Paying Agent to Holders will be determined by
the Fund as set forth in Section 11.2 of the Amended and Restated Bylaws. The
redemption price to be paid by the Paying Agent to the Holders of any shares of
Preferred Shares called for redemption will be determined as set forth in
Section 11.4 of the Amended and Restated Bylaws.
IV. THE PAYING AGENT AS TRANSFER AGENT AND REGISTRAR.
4.1 Original Issue of Share Certificates.
-------------------------------------
On the Date of Original Issue for any share of Preferred Shares, one
certificate for each series of Preferred Shares shall be issued by the Fund and
registered in the name of Cede & Co., as nominee of the Securities Depository,
and countersigned by the Paying Agent.
4.2 Registration of Transfer or Exchange of Shares.
-----------------------------------------------
Except as provided in this Section 4.2, the shares of each series of
Preferred Shares shall be registered solely in the name of the Securities
Depository or its nominee. If there is no Securities Depository, at the Fund's
option and upon its receipt of such documents as it deems appropriate, any
Preferred Shares may be registered in the Stock Register in the name of the
Beneficial Owner thereof and such Beneficial Owner thereupon will be entitled
to receive
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certificates therefor and required to deliver certificates thereof or upon
transfer or exchange thereof. If the certificate or certificates for Preferred
Shares are not held by the Securities Depository or its nominee, payment will be
made in same-day funds to the Auction Agent against delivery of such
certificates.
4.3 Removal of Legend.
------------------
Any request for removal of a legend indicating a restriction on transfer
from a certificate evidencing Preferred Shares shall be accompanied by an
opinion of counsel stating that such legend may be removed and such shares may
be transferred free of the restriction described in such legend, said opinion to
be delivered under cover of a letter from a Fund Officer authorizing the Paying
Agent to remove the legend on the basis of said opinion.
4.4 Lost, Stolen or Destroyed Shares Certificates.
----------------------------------------------
The Paying Agent shall issue and register replacement certificates for
certificates represented to have been lost, stolen or destroyed, upon the
fulfillment of such requirements as shall be deemed appropriate by the Fund and
by the Paying Agent, subject at all times to provisions of law, the Amended and
Restated Bylaws governing such matters and resolutions adopted by the Fund with
respect to lost, stolen or destroyed securities. The Paying Agent may issue new
certificates in exchange for and upon the cancellation of mutilated
certificates. Any request by the Fund to the Paying Agent to issue a
replacement or new certificate pursuant to this Section 4.4 shall be deemed to
be a representation and warranty by the Fund to the Paying Agent that such
issuance will comply with provisions of applicable law and the Amended and
Restated Bylaws and resolutions of the Fund.
4.5 Disposition of Canceled Certificates; Record Retention.
-------------------------------------------------------
The Paying Agent shall retain share certificates which have been canceled
in transfer or in exchange and accompanying documentation in accordance with
applicable rules and regulations of the Securities and Exchange Commission (the
"Commission") for at least six calendar years from the date of such
cancellation. The Paying Agent, upon written request by the Fund, shall afford
to the Fund, its agents and counsel access at reasonable times during normal
business hours to review and make extracts or copies (at the Fund's sole cost
and expense) of such certificates and accompanying documentation. Upon the
expiration of this six-year period, the Paying Agent shall deliver to the Fund
the canceled certificates and accompanying documentation. The Paying Agent also
shall undertake to furnish to the Commission, upon demand, either at its
principal office or at any regional office, complete, correct and current hard
copies of any and all such records. Thereafter, such records shall not be
destroyed by the Fund without the approval of the Paying Agent, which approval
shall not be withheld unreasonably, but will be safely stored for possible
future reference.
4.6 Share Register.
---------------
The Paying Agent shall maintain the share register, which shall contain a
list of the Holders, the number of shares held by each Holder and the address of
each Holder. The Paying Agent shall record in the share register any change of
address of a Holder upon notice by such Holder. In case of any written request
or demand for the inspection of the share register or any
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other books of the Fund in the possession of the Paying Agent, the Paying Agent
will notify the Fund and secure instructions as to permitting or refusing such
inspection. The Paying Agent reserves the right, however, to exhibit the share
register or other records to any person in case it is advised by its counsel
that its failure to do so would be unlawful.
4.7 Return of Funds.
----------------
Any funds deposited with the Paying Agent by the Fund for any reason under
this Agreement, including for the payment of dividends or the redemption of
Preferred Shares, that remain with the Paying Agent after 90 days shall be
repaid to the Fund upon written request by the Fund.
V. REPRESENTATIONS AND WARRANTIES.
5.1 Representations and Warranties of the Fund.
-------------------------------------------
The Fund represents and warrants to the Auction Agent that:
(i) the Fund has been duly organized and is validly existing as an
unincorporated voluntary association under and by virtue of the laws of The
Commonwealth of Massachusetts, and has full power to execute and deliver this
Agreement and to authorize, create and issue the Preferred Shares;
(ii) the Fund is registered with the Commission under the 1940 Act
as a closed-end, diversified, management investment company;
(iii) this Agreement has been duly and validly authorized, executed
and delivered by the Fund and constitutes the legal, valid and binding
obligation of the Fund, enforceable against the Fund in accordance with its
terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equitable principles;
(iv) the form of the certificates evidencing the Preferred Shares
comply with all applicable laws of The Commonwealth of Massachusetts;
(v) the Preferred Shares have been duly and validly authorized by
the Fund and, upon completion of the initial sale of the Preferred Shares and
receipt of payment therefor, will be validly issued by the Fund, fully paid and
nonassessable;
(vi) at the time of the offering of the Preferred Shares, the shares
offered will be registered under the Securities Act and no further action by or
before any governmental body or authority of the United States or of any state
thereof is required in connection with the execution and delivery of this
Agreement or will be required in connection with the issuance of shares of the
Preferred Shares, except such action as required by applicable state securities
laws;
(vii) the execution and delivery of this Agreement and the issuance
and delivery of the Preferred Shares do not and will not conflict with, violate,
or result in a breach of
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the terms, conditions or provisions of, or constitute a default under, the
Agreement and Declaration of Trust, any order or decree of any court or public
authority having jurisdiction over the Fund, or any mortgage, indenture,
contract, agreement or undertaking to which the Fund is a party or by which it
is bound the effect of which conflict, violation, default or breach would be
material to the Fund; and
(viii) no taxes are payable upon or in respect of the execution of
this Agreement or will be payable upon or in respect of the issuance of the
Preferred Shares.
5.2 Representations and Warranties of the Auction Agent.
----------------------------------------------------
The Auction Agent represents and warrants to the Fund that:
(i) The Auction Agent is duly organized and is validly existing as a
banking corporation in good standing under the laws of the State of New York and
has the corporate power to enter into and perform its obligations under this
Agreement; and
(ii) this Agreement has been duly and validly authorized, executed
and delivered by the Auction Agent and constitutes the legal, valid and binding
obligation of the Auction Agent, enforceable against the Auction Agent in
accordance with its terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equitable principles.
VI. THE AUCTION AGENT.
6.1 Duties and Responsibilities.
----------------------------
(a) The Auction Agent is acting solely as agent for the Fund hereunder
and owes no fiduciary duties to any Person except as provided by this Agreement.
(b) The Auction Agent undertakes to perform such duties and only such
duties as are set forth specifically in this Agreement, and no implied covenants
or obligations shall be read into this Agreement against the Auction Agent.
(c) In the absence of bad faith or negligence on its part, the Auction
Agent shall not be liable for any action taken, suffered or omitted by it, or
for any error of judgment made by it in the performance of its duties under this
Agreement.
6.2 Rights of the Auction Agent.
----------------------------
(a) The Auction Agent may rely upon, and shall be protected in acting
or refraining from acting upon, any communication authorized by this Agreement
and any written instruction, notice, request, direction, consent, report,
certificate, share certificate or other instrument, paper or document reasonably
believed by it to be genuine. The Auction Agent shall not be liable for acting
upon any telephone communication authorized by this Agreement which the Auction
Agent reasonably believes in good faith to have been given by the Fund or by a
Broker-Dealer. The Auction Agent may record telephone communications with the
Fund or with the Broker-Dealers or with both.
11
(b) The Auction Agent may consult with counsel of its choice, and the
written advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reasonable reliance thereon.
(c) The Auction Agent shall not be required to advance, expend or risk
its own funds or otherwise incur or become exposed to financial liability in the
performance of its duties hereunder.
(d) The Auction Agent may perform its duties and exercise its rights
hereunder either directly or by or through agents or attorneys.
6.3 Compensation, Expenses and Indemnification.
-------------------------------------------
(a) The Fund shall pay to the Auction Agent from time to time
reasonable compensation for all services rendered by it under this Agreement and
under the Broker-Dealer Agreements as shall be set forth in a separate writing
signed by the Fund and the Auction Agent, subject to adjustments if the
Preferred Shares no longer are held of record by the Securities Depository or
its nominee or if there shall be such other change as shall increase or decrease
materially the Auction Agent's obligations hereunder or under the Broker-Dealer
Agreements.
(b) The Fund shall reimburse the Auction Agent upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Auction Agent in accordance with any provision of this Agreement and of the
Broker-Dealer Agreements (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any expense, disbursement or
advance attributable to its negligence or bad faith.
(c) The Fund shall indemnify the Auction Agent for, and hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Auction Agent arising out of or in connection with
its agency under this Agreement and under the Broker-Dealer Agreements,
including the costs and expenses of defending itself against any claim of
liability in connection with its exercise or performance of any of its duties
hereunder and thereunder, except such as may result from its negligence or bad
faith.
VII. MISCELLANEOUS.
7.1 Term of Agreement.
------------------
(a) The term of this Agreement is unlimited unless it shall be
terminated as provided in this Section 7.1. The Fund may terminate this
Agreement at any time by so notifying the Auction Agent, provided that, if any
Preferred Shares remain outstanding, the Fund shall have entered into an
agreement with a successor auction agent. The Auction Agent may terminate this
Agreement upon prior notice to the Fund on the date specified in such notice,
which date shall be no earlier than 60 days after delivery of such notice. If
the Auction Agent terminates this Agreement while any Preferred Shares remain
outstanding, the Fund shall use its best efforts to enter into an agreement with
a successor auction agent containing substantially the same terms and conditions
as this Agreement.
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(b) Except as otherwise provided in this Section 7.1(b), the
respective rights and duties of the Fund and the Auction Agent under this
Agreement shall cease upon termination of this Agreement. The Fund's
representations, warranties, covenants and obligations to the Auction Agent
under Sections 5.1 and 6.3 hereof shall survive the termination hereof. The
Auction Agent's representations, warranties, covenants and obligations under
Section 6.1 shall survive the termination hereof. Upon termination of this
Agreement, the Auction Agent shall (i) resign as Auction Agent under the Broker-
Dealer Agreements, (ii) at the Fund's request, deliver promptly to the Fund
copies of all books and records maintained by it in connection with its duties
hereunder, and (iii) at the request of the Fund, transfer promptly to the Fund
or to any successor auction agent any funds deposited by the Fund with the
Auction Agent (whether in its capacity as Auction Agent or as Paying Agent)
pursuant to this Agreement which have not been distributed previously by the
Auction Agent in accordance with this Agreement.
7.2 Communications.
---------------
Except for (i) communications authorized to be made by telephone pursuant
to this Agreement or the Auction Procedures and (ii) communications in
connection with Auctions (other than those expressly required to be in writing),
all notices, requests and other communications to any party hereunder shall be
in writing (including telecopy or similar writing) and shall be given to such
party at its address or telecopier number set forth below:
If to the Fund, PIMCO Municipal Income Fund
addressed to: c/o PIMCO Advisory Services
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Auction Agent, Bankers Trust Company
addressed to: Corporate Trust and Agency Group
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Auction Rate Securities
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
or such other address or telecopier number as such party hereafter may specify
for such purpose by notice to the other party. Each such notice, request or
communication shall be effective when delivered at the address specified herein.
Communications shall be given on behalf of the Fund by a Fund Officer and on
behalf of the Auction Agent by an Authorized Officer.
7.3 Entire Agreement.
-----------------
This Agreement contains the entire agreement between the parties relating
to the subject matter hereof, and there are no other representations,
endorsements, promises, agreements or understandings, oral, written or implied,
between the parties relating to the subject matter hereof, except for agreements
relating to the compensation of the Auction Agent.
13
7.4 Benefits.
---------
Nothing herein, express or implied, shall give to any Person, other than
the Fund, the Auction Agent and their respective successors and assigns, any
benefit of any legal or equitable right, remedy or claim hereunder.
7.5 Amendment; Waiver.
------------------
(a) This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged.
(b) Failure of either party hereto to exercise any right or remedy
hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
7.6 Successors And Assigns.
-----------------------
This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and permitted assigns of each of the
Fund and the Auction Agent. This Agreement may not be assigned by either party
hereto absent the prior written consent of the other party, which consent shall
not be withheld unreasonably.
7.7 Severability.
-------------
If any clause, provision or section hereof shall be ruled invalid or
unenforceable by any court of competent jurisdiction, the invalidity or
unenforceability of such clause, provision or section shall not affect any of
the remaining clauses, provisions or sections hereof.
7.8 Execution in Counterparts.
--------------------------
This Agreement may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
7.9 Governing Law.
--------------
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said state.
7.10 Limitation of Liability.
------------------------
The Fund's Agreement and Declaration of Trust is on file with the Secretary
of State of The Commonwealth of Massachusetts. This Agreement is executed on
behalf of the Fund by the Fund's officers as officers and not individually and
the obligations imposed upon the Fund by this Agreement are not binding upon any
of the Fund's Trustees, officers or shareholders individually but are binding
only upon the assets and property of the Fund.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the date first above written.
PIMCO MUNICIPAL INCOME FUND
By:
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer and Principal Financial
and Accounting Officer
BANKERS TRUST COMPANY
By:
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
15
EXHIBIT A
FORM OF BROKER-DEALER AGREEMENT
-------------------------------
Incorporated by reference from Exhibit k.6 of Pre-Effective Amendment No. 1 to
the Trust's Registration Statement on Form N-2 (File Nos. 811-10377 and
333-64796), as filed concurrently with this exhibit.