<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE THREE MONTHS ENDED SEPTEMBER 30, 1998
COMMISSION FILE NO. 0-8841
------------------------
THE PIONEER GROUP, INC.
(exact name of registrant as specified in its charter)
------------------------
<TABLE>
<S> <C>
DELAWARE 13-5657669
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
60 STATE STREET, BOSTON, MASSACHUSETTS 02109
(Address of principal executive offices) (Zip Code)
</TABLE>
617-742-7825
(Registrant's telephone number, including area code)
NO CHANGES
(Former name, former address and former fiscal year, if changes since last
report)
------------------------
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding twelve months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No __
------------------------
As of September 30, 1998, there were 25,835,840 shares of the Registrant's
Common Stock, $.10 par value per share, issued and outstanding.
================================================================================
<PAGE> 2
PART I -- FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
THE PIONEER GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNT)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1998 1997
------------- ------------
(UNAUDITED)
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents, at cost which approximates fair
value..................................................... $ 50,068 55,601
Restricted cash............................................. 8,286 7,078
Investment in marketable securities, at fair value.......... 4,079 10,649
Receivables:
From securities brokers and dealers for sales of mutual
fund shares............................................ 10,438 11,752
From Pioneer Family of Mutual Funds..................... 14,897 17,428
For securities sold..................................... 1,056 11,466
For gold shipments...................................... 2,991 3,451
Other................................................... 11,288 12,695
Note receivable for sale of class B share rights............ 61,731 --
Mining inventory............................................ 19,002 22,032
Timber inventory............................................ 2,503 5,897
Other current assets........................................ 14,820 10,453
-------- --------
Total current assets................................ 201,159 168,502
-------- --------
NONCURRENT ASSETS:
Mining operations:
Mining equipment and facilities (net of accumulated
depreciation of $90,170 in 1998 and $76,060 in 1997)... 89,224 99,164
Deferred mining development costs (net of accumulated
amortization of $18,293 in 1998 and $16,177 in 1997)... 15,793 17,521
Cost of acquisition in excess of net assets (net of
accumulated amortization of $14,194 in 1998 and $12,083 in
1997)..................................................... 18,155 20,216
Long-term venture capital investments, at fair value (cost
$98,808 in 1998 and $71,754 in 1997)...................... 107,396 95,382
Long-term investments, at lower of cost or fair value....... 8,459 15,671
Timber operations:
Timber equipment and facilities (net of accumulated
depreciation of $2,360 in 1998 and $1,260 in 1997)..... 18,530 17,898
Deferred timber development costs (net of accumulated
amortization of $2,596 in 1998 and $1,611 in 1997)..... 19,799 21,264
Building (net of accumulated amortization of $1,168 in 1998
and $598 in 1997)......................................... 25,030 25,087
Furniture, equipment, and leasehold improvements (net of
accumulated depreciation and amortization of $12,380 in
1998 and $8,565 in 1997).................................. 20,105 16,521
Dealer advances (net of accumulated amortization of $17,366
in 1997).................................................. -- 41,871
Other noncurrent assets..................................... 21,527 20,696
Noncurrent assets of discontinued operations................ -- 7,421
-------- --------
Total noncurrent assets............................. 344,018 398,712
-------- --------
$545,177 $567,214
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Payable to funds for shares sold............................ $ 10,427 $ 11,766
Accounts payable............................................ 13,958 18,048
Accrued expenses............................................ 41,450 27,414
Brokerage liabilities....................................... 5,906 14,702
Accrued income taxes........................................ 19,131 7,641
Current portion of notes payable............................ 63,519 17,411
Current liabilities net of current assets of discontinued
operations................................................ 1,169 4,939
-------- --------
Total current liabilities........................... 155,560 101,921
-------- --------
NONCURRENT LIABILITIES:
Notes payable, net of current portion....................... 130,374 168,424
Deferred income taxes, net.................................. 5,233 29,334
-------- --------
Total noncurrent liabilities........................ 135,607 197,758
-------- --------
Total liabilities................................... 291,167 299,679
-------- --------
Minority interest........................................... 92,931 83,848
-------- --------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY
Common stock, $.10 par value; authorized 60,000,000
shares; issued 25,840,831 shares in 1998 and 25,219,567
shares in 1997......................................... 2,584 2,522
Paid-in capital......................................... 27,173 15,912
Retained earnings....................................... 143,219 171,558
Cumulative translation adjustment....................... (1,787) (1,277)
Treasury stock at cost, 4,991 shares in 1998 and 2,670
shares in 1997......................................... (119) (65)
-------- --------
171,070 188,650
Less -- Deferred cost of restricted common stock
issued...................................................... (9,991) (4,963)
-------- --------
Total stockholders' equity.......................... 161,079 183,687
-------- --------
$545,177 $567,214
======== ========
</TABLE>
The Company's Annual Report on Form 10-K should be read in conjunction with
these financial statements.
2
<PAGE> 3
THE PIONEER GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
(DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------------- -------------------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues and sales:
Investment management fees..................... $ 34,506 $ 32,994 $ 105,247 $ 88,511
Underwriting commissions and distribution
fees......................................... 7,694 5,952 22,203 17,186
Shareholder services fees...................... 8,243 7,357 23,737 20,719
Net revenues from brokerage activities......... (828) 16,638 1,240 28,046
Trustee fees and other income.................. 13,290 3,870 26,439 14,711
----------- ----------- ----------- -----------
Revenues from financial services businesses.... 62,905 66,811 178,866 169,173
Gold sales..................................... 17,755 23,451 58,387 61,911
Timber sales................................... 3,059 4,667 5,941 8,934
----------- ----------- ----------- -----------
Total revenues and sales.................. 83,719 94,929 243,194 240,018
----------- ----------- ----------- -----------
Costs and expenses:
Management, distribution, shareholder service
and administrative expenses.................. 58,391 47,850 155,867 131,294
Gold mining operating costs and expenses....... 26,472 23,514 75,291 63,430
Timber operating costs and expenses............ 6,764 5,325 18,838 10,426
----------- ----------- ----------- -----------
Total costs and expenses.................. 91,627 76,689 249,996 205,150
----------- ----------- ----------- -----------
Other (income) expense:
Unrealized and realized losses (gains) on
venture capital and marketable securities
investments, net............................. 13,824 (5,449) 780 (20,792)
Interest expense............................... 4,743 3,434 12,460 7,961
Other, net..................................... 211 278 547 537
----------- ----------- ----------- -----------
Total other (income) expense.............. 18,778 (1,737) 13,787 (12,294)
----------- ----------- ----------- -----------
Income (loss) from continuing operations before
provision for federal, state and foreign income
taxes and minority interest...................... (26,686) 19,977 (20,589) 47,162
Provision for federal, state and foreign income
taxes............................................ 217 8,231 6,181 20,167
----------- ----------- ----------- -----------
Income (loss) from continuing operations before
minority interest................................ (26,903) 11,746 (26,770) 26,995
----------- ----------- ----------- -----------
Minority interest.................................. (10,966) 2,820 (9,959) 5,140
----------- ----------- ----------- -----------
Net (loss) income from continuing
operations....................................... $ (15,937) $ 8,926 $ (16,811) $ 21,855
----------- ----------- ----------- -----------
Income (loss) from discontinued Russian banking
operations....................................... (540) 596 (6,449) (49)
----------- ----------- ----------- -----------
Net (loss) income.................................. $ (16,477) $ 9,522 $ (23,260) $ 21,806
=========== =========== =========== ===========
Basic earnings (loss) per share....................
Continuing operations.......................... $ (0.63) $ 0.36 $ (0.67) $ 0.88
=========== =========== =========== ===========
Discontinued operations........................ $ (0.02) $ 0.02 $ (0.26) $ 0.00
=========== =========== =========== ===========
Total basic earnings (loss) per share.............. $ (0.65) $ 0.38 $ (0.93) $ 0.88
=========== =========== =========== ===========
Diluted earnings (loss) per share..................
Continuing operations.......................... $ (0.63) $ 0.35 $ (0.67) $ 0.85
=========== =========== =========== ===========
Discontinued operations........................ $ (0.02) $ 0.02 $ (0.25) $ 0.00
=========== =========== =========== ===========
Total diluted earnings (loss) per share............ $ (0.65) $ 0.37 $ (0.92) $ 0.85
=========== =========== =========== ===========
Dividends per share................................ -- $ 0.10 $ 0.20 $ 0.30
=========== =========== =========== ===========
Basic shares outstanding........................... 25,207,000 24,857,000 25,091,000 24,838,000
=========== =========== =========== ===========
Diluted shares outstanding......................... 25,207,000 25,688,000 25,325,000 25,589,000
=========== =========== =========== ===========
</TABLE>
The Company's Annual Report on Form 10-K should be read in conjunction with
these financial statements.
3
<PAGE> 4
THE PIONEER GROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
---------------------
1998 1997
--------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss)......................................... $ (23,260) $ 21,806
Less net (loss) of discontinued operations................ (6,449) (49)
--------- --------
Net income (loss) from continuing operations.............. (16,811) 21,855
Adjustments to reconcile net income (loss) to net cash
provided by continuing operating activities:
Depreciation and amortization........................... 39,577 29,779
Unrealized and realized gains on venture capital and
marketable securities, net............................. 780 (20,792)
(Equity in earnings of) provision on other
investments............................................ (104) 1,241
Restricted stock plan expense........................... 2,273 1,427
Deferred income taxes................................... (24,101) 3,279
Minority interest....................................... (9,959) 5,140
Changes in operating assets and liabilities:
Investments in marketable securities, net............... 4,441 (5,496)
Receivable from securities brokers and dealers for sales
of mutual fund shares.................................. 1,314 (3,222)
Receivables for securities sold......................... 10,410 (29,651)
Receivables for gold shipments.......................... 460 (362)
Receivables from Pioneer Family of Mutual Funds and
Other.................................................. 3,816 (6,961)
Receivable from sale of Class B share rights............ (61,731) --
Mining inventory........................................ 3,030 797
Timber inventory........................................ 3,394 (4,839)
Other current assets.................................... (5,375) (200)
Other noncurrent assets................................. (730) (1,105)
Payable to funds for shares sold........................ (1,339) 3,263
Accrued expenses and accounts payable................... 9,946 16,997
Brokerage liabilities................................... (8,796) 25,401
Accrued income taxes.................................... 11,564 6,316
--------- --------
Total adjustments................................... (21,130) 21,012
--------- --------
Net cash (used in) provided by continuing operating
activities.......................................... (37,941) 42,867
--------- --------
Net cash provided by discontinued operating
activities.......................................... 31 30
--------- --------
Net cash (used in) provided by operating
activities.......................................... (37,910) 42,897
--------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of mining equipment and facilities............... (6,500) (3,162)
Deferred mining development costs......................... (388) (9,605)
Additions to furniture, equipment and leasehold
improvements............................................ (8,714) (4,201)
Building.................................................. (513) (682)
Long-term venture capital investments..................... (30,117) (23,900)
Proceeds from sale of long-term venture capital
investments............................................. 21,248 4,766
Loans to banks and customers.............................. -- (413)
Deferred timber development costs......................... 357 6,094
Timber equipment and facilities........................... (1,732) (8,793)
Other investments......................................... (2,582) (4,041)
Proceeds from sales of other investments.................. 1,103 1,732
Cost of acquisition in excess of net assets acquired...... (50) (87)
Long-term investments..................................... (827) (3,562)
Proceeds from sale of long-term investments............... 5,007 12,779
--------- --------
Net cash used in investing activities, continuing
operations.......................................... (23,708) (33,075)
--------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Dividends paid............................................ (5,079) (7,545)
Distributions to limited partners of venture capital
subsidiary.............................................. (68) (94)
Amounts raised by venture capital investment
partnerships............................................ 17,903 19,597
Exercise of stock options................................. 3,391 467
Restricted stock plan award............................... 28 10
Employee stock purchase plan.............................. 474 380
Dealer advances........................................... 32,797 (11,612)
Revolving credit agreement borrowings, net................ 22,500 (5,000)
Borrowings of notes payable............................... -- 22,625
Repayments of notes payable............................... (14,442) (8,390)
Reclassification of restricted cash....................... (1,208) (1,827)
--------- --------
Net cash provided by financing activities,
continuing operations............................... 56,296 8,611
--------- --------
Effect of foreign currency exchange rate changes on cash and
cash equivalents.......................................... (211) (533)
--------- --------
Net (decrease) increase in cash and cash equivalents........ (5,533) 17,900
Cash and cash equivalents at beginning of period............ 55,601 25,291
--------- --------
Cash and cash equivalents at end of period.................. $ 50,068 $ 43,191
========= ========
</TABLE>
The Company's Annual Report on Form 10-K should be read in conjunction with
these financial statements.
4
<PAGE> 5
THE PIONEER GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
SEPTEMBER 30, 1998
NOTE 1 -- SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accounting and reporting policies of the Company conform to generally
accepted accounting principles. The Company has not changed any of its principal
accounting policies from those stated in the Annual Report on Form 10-K for the
year ended December 31, 1997. The footnotes to the financial statements reported
in the 1997 Annual Report on Form 10-K are incorporated herein by reference,
except to the extent that any such footnote is updated by the following:
Certain reclassifications have been made to the accompanying 1997
consolidated financial statements to conform with the 1998 presentation.
In April 1998, the American Institute of Certified Public Accountants (the
"AICPA") issued Statement of Position 98-5, "Reporting on the Costs of Start-Up
Activities". The new standard requires that entities expense costs of start-up
activities as those costs are incurred. The term start-up includes
pre-operating, pre-opening and organization activities. The Company has
capitalized certain pre-operating costs in connection with its natural resource
operations, and has certain capitalized organizational costs associated with its
emerging markets financial services operations.
The statement must be adopted by the first quarter of 1999. At adoption,
the Company must record a cumulative effect of a change in accounting principle
and write-off all remaining unamortized start-up costs. At this time, the
Company has estimated unamortized capitalized start-up costs of approximately
$20 million, related principally to its timber operations.
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") 133, "Accounting for Derivative
Instruments and Hedging Activities." The Statement establishes accounting and
reporting standards requiring that every derivative instrument be recorded in
the balance sheet as either an asset or a liability measured at its fair value.
The Statement requires that changes in the derivative's fair value be recognized
currently in earnings unless specific hedge accounting criteria are met. The
Company has not yet quantified the impact of adopting Statement 133 on its
financial statements and has not determined the timing of or method of its
adoption of Statement 133. Statement 133 is effective for fiscal years beginning
after June 15, 1999.
Income taxes paid were $14,794,000 and $10,874,000 for the nine months
ended September 30, 1998, and September 30, 1997, respectively. In addition,
interest paid was $11,554,000 for the nine months ended September 30, 1998, and
$10,231,000 for the nine months ended September 30, 1997. Included in these
interest paid amounts was $1,353,000, for the nine months ended September 30,
1997 that was capitalized related to TGL's mining Phase III expansion
operations.
5
<PAGE> 6
THE PIONEER GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
SEPTEMBER 30, 1998
NOTE 2 -- EARNINGS PER SHARE
The Company adopted SFAS 128, "Earnings Per Share," during 1997. SFAS 128
requires the replacement of earnings per share ("EPS") with basic EPS. Basic EPS
is computed by dividing reported earnings available to stockholders by weighted
average shares outstanding not including contingently issuable shares. No
dilution for potentially dilutive securities is included. Fully diluted EPS,
called diluted EPS under SFAS 128, is still required. Amounts for 1997 have been
restated to conform to this presentation. The computations for basic earnings
per share and diluted earnings per share are as follows:
<TABLE>
<CAPTION>
NET EARNINGS/
INCOME/ (LOSS)
(LOSS) SHARES PER SHARE
--------- ------- ----------
(DOLLARS AND SHARES IN THOUSANDS
EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C>
FOR THE THREE MONTHS ENDED 9/30/98
Basic earnings per share calculation..........
Continuing operations......................... $(15,937) 25,207 $(0.63)
------
Discontinued operations....................... $ (540) 25,207 $(0.02)
-------- ------ ------
Total....................................... $(16,477) 25,207 $(0.65)
------
Options....................................... -- --
Restricted stock.............................. -- --
-------- ------
Diluted earnings per share calculation........
Continuing operations......................... $(15,937) 25,207 $(0.63)
------
Discontinued operations....................... $ (540) 25,207 $(0.02)
-------- ------ ------
Total....................................... $(16,477) 25,207 $(0.65)
------
FOR THE THREE MONTHS ENDED 9/30/97
Basic earnings per share calculation..........
Continuing operations......................... $ 8,926 24,857 $ 0.36
------
Discontinued operations....................... $ 596 24,857 $ 0.02
-------- ------ ------
Total....................................... $ 9,522 24,857 $ 0.38
------
Options....................................... -- 730
Restricted stock.............................. -- 101
-------- ------
Diluted earnings per share calculation........
Continuing operations......................... $ 8,926 25,688 $ 0.35
------
Discontinued operations....................... $ 596 25,688 $ 0.02
-------- ------ ------
Total....................................... $ 9,522 25,688 $ 0.37
------
</TABLE>
6
<PAGE> 7
THE PIONEER GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
SEPTEMBER 30, 1998
<TABLE>
<CAPTION>
NET EARNINGS/
INCOME/ (LOSS)
(LOSS) SHARES PER SHARE
--------- ------- ----------
(DOLLARS AND SHARES IN THOUSANDS
EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C>
FOR THE NINE MONTHS ENDED 9/30/98
Basic earnings per share calculation..........
Continuing operations......................... $(16,811) 25,091 $(0.67)
------
Discontinued operations....................... $ (6,449) 25,091 $(0.26)
-------- ------ ------
Total....................................... $(23,260) 25,091 $(0.93)
------
Options....................................... -- 251
Restricted stock.............................. -- (17)
-------- ------
Diluted earnings per share calculation........
Continuing operations......................... $(16,811) 25,325 $(0.67)
------
Discontinued operations....................... $ (6,449) 25,325 $(0.25)
-------- ------ ------
Total....................................... $(23,260) 25,325 $(0.92)
------
FOR THE NINE MONTHS ENDED 9/30/97
Basic earnings per share calculation..........
Continuing operations......................... $ 21,855 24,838 $ 0.88
------
Discontinued operations....................... $ (49) 24,838 $ 0.00
-------- ------ ------
Total....................................... $ 21,806 24,838 $ 0.88
------
Options....................................... -- 706
Restricted stock.............................. -- 45
-------- ------
Diluted earnings per share calculation........
Continuing operations......................... $ 21,855 25,589 $ 0.85
------
Discontinued operations....................... $ (49) 25,589 $ 0.00
-------- ------ ------
Total....................................... $ 21,806 25,589 $ 0.85
------
</TABLE>
NOTE 3 -- COMPREHENSIVE INCOME
The Company adopted SFAS 130, "Reporting Comprehensive Income" in the first
quarter of 1998. SFAS 130 establishes standards for the reporting of
comprehensive income and its components. Comprehensive income, as defined,
includes all changes in equity during a period from non-owner sources. The
Company's foreign currency translation adjustments, which are excluded from net
income, are included in comprehensive income. The following table reports
comprehensive income for the nine months ended September 30, 1998 and 1997.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
-----------------------
1998 1997
---------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Net income/(loss)................................... $(23,260) $21,806
-------- -------
Other comprehensive (expense), net of tax:
Foreign currency translation adjustments.......... (510) (1,076)
-------- -------
Other comprehensive (expense)....................... (510) (1,076)
-------- -------
Comprehensive income/(loss)......................... $(23,770) $20,730
======== =======
</TABLE>
7
<PAGE> 8
THE PIONEER GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
SEPTEMBER 30, 1998
NOTE 4 -- MINING INVENTORY
Mining inventories consist of the following:
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1998 1997
------------- ------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Gold-in-process................................ $ 2,328 $ 1,998
Materials and supplies......................... 16,674 20,034
------- -------
$19,002 $22,032
======= =======
</TABLE>
NOTE 5 -- NET CAPITAL
As a broker-dealer, PFD is subject to the Securities and Exchange
Commission's ("SEC") regulations and operating guidelines which, among other
things, requires PFD to maintain a minimum amount of net capital of $250,000.
PFD's net capital, as computed under Rule 15c3-1, was $924,680 at September 30,
1998.
PFD is exempt from the reserve requirements of Rule 15c3-3, since its U.S.
broker-dealer transactions are limited to the purchase, sale and redemption of
redeemable securities of registered investment companies. All customer funds are
promptly transmitted and all securities received in connection with activities
as a broker-dealer are promptly delivered. PFD does not otherwise hold funds or
securities for, or owe money or securities to, customers.
8
<PAGE> 9
THE PIONEER GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
SEPTEMBER 30, 1998
NOTE 6 -- NOTES PAYABLE
Notes payable of the Company consist of the following:
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1998 1997
------------- ------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Revolving Credit Agreement.................................. $118,500* $ 96,000
Senior note payable to a commercial lender, principal
payable on August 15, 2004, interest payable at 7.95%..... 20,000 20,000
Preferred shares financing related to the Russian investment
operations................................................ -- 2,000
Small Business Administration ("SBA") financing, notes
payable to a bank, interest payable semi-annually at rates
ranging from 6.12% to 9.8%, principal due in 1998 through
2003...................................................... 3,750 4,950
Note payable to a bank, interest payable quarterly at the
three month LIBOR rate plus 6%, principal due in eight
quarterly installments through January, 1999, secured by
lease rental payments and proceeds from insurance
policies.................................................. 913 1,897
Notes payable to a bank, guaranteed by the Company,
principal payable in semi-annual installments, of $214,000
through November 30, 1999, no interest payable, secured by
equipment................................................. 644 858
Note payable to a bank, guaranteed by the Swedish Exports
Credits Guarantee Board, principal payable in semi-annual
installments of $1,415,000 through January 31, 2002,
interest payable at 6.42%, secured by equipment........... 9,902 12,732
Note payable to a supplier, principal payable in quarterly
installments of $336,000 through April 15, 2001, interest
payable at 7.85%, secured by equipment.................... 3,691 4,699
Note payable to a supplier, principal and interest payable
in quarterly installments of $102,000 through April 15,
2001, interest payable at 7.85%, secured by equipment..... 1,001 1,239
Note payable to a supplier, principal payable in quarterly
installments of $285,000 through May 30, 2001, interest
payable at 8.00%, secured by equipment.................... 3,133 3,988
Note payable to a supplier, principal payable in quarterly
installments of $338,000 through December 15, 2001,
interest payable at 8.25%, secured by equipment........... 4,223 5,237
Note payable to a supplier, principal payable in semi-annual
installments of $637,000 through April 15, 2003, interest
payable at 8.30%, secured by equipment.................... 5,484 5,795
Note payable to a bank, guaranteed by OPIC, principal
payable in twelve equal semi-annual installments of
$1,583,000 through September 15, 2003, interest payable at
6.37%..................................................... 15,832 19,000
Project financing, guaranteed by OPIC, payable in
semi-annual installments of $620,000 through December 15,
2003, interest payable at 7.20%........................... 6,820 7,440
-------- --------
193,893 185,835
Less: Current portion....................................... (63,519)* (17,411)
-------- --------
$130,374 $168,424
======== ========
</TABLE>
- ---------------
* Includes $49,500 related to the Company's B-share Revolver which was repaid in
October 1998.
9
<PAGE> 10
THE PIONEER GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
SEPTEMBER 30, 1998
Maturities of notes payable at September 30, 1998, for each of the next
five years and thereafter are as follows (dollars in thousands):
<TABLE>
<S> <C>
10/1/98-9/30/99................................. $ 63,519
10/1/99-9/30/00................................. 12,935
10/1/00-9/30/01................................. 83,192
10/1/01-9/30/02................................. 6,973
10/1/02-9/30/03................................. 6,654
Thereafter...................................... 20,620
--------
$193,893
========
</TABLE>
In June 1996, the Company entered into an agreement with a syndicate of
commercial banks for a senior credit facility (the "Credit Facility"). Under the
Credit Facility, the Company may borrow up to $60 million (the "B-share
Revolver") to finance dealer advances relating to sales of back-end load shares
of the Company's domestic mutual funds. In September 1998, the Company sold to a
third party its rights to receive future distribution fees and deferred sales
charges from the distribution of Class B Shares of Pioneer Mutual Funds. The
agreement also provides for the sale at a premium of additional rights arising
out of future sales of Class B Shares on a monthly basis over the next three
years, thereby eliminating the need of financing Class B Shares as the Company
had previously done. The Company used the proceeds from its sale of B-share
rights to repay the $49.5 million B-share revolver in October of 1998.
The Credit Facility also provides that the Company may borrow up to $80
million for general corporate purposes (the "Corporate Revolver"). At September
30, 1998, the Company had borrowed $69.0 million under the Corporate Revolver.
Under the Credit Facility, the Company is required to maintain interest
rate protection agreements covering at least 60% of the outstanding indebtedness
under the B-share Revolver. As of September 30, 1998, the Company entered into
six five-year interest rate swap agreements with a member of the Company's
banking syndicate which has effectively fixed the interest rate on notional
amounts totaling $100 million. Under these agreements, the Company will pay the
bank a weighted average fixed rate of 6.76%, plus the applicable margin (ranging
from 0.75% to 1.75%), on the notional principal. The bank will pay the Company
interest on the notional principal at the current variable rate stated under the
B-share Revolver. The Company has incurred approximately $876,000 and $812,000
of interest expense on these swap agreements at September 30, 1998 and September
30, 1997, respectively. The fair value of these agreements was $5,451,000, at
September 30, 1998, which represents the estimated amount the Company would be
obligated to pay to terminate the agreements.
For the nine months ended September 30, 1998, and September 30, 1997 the
weighted average interest rate on the borrowings under the Credit Facility and
Note Agreement was 7.93% and 8.0%, respectively.
NOTE 7 -- DISCONTINUED OPERATIONS
In the third quarter of 1998, the Company decided to liquidate its Russian
banking operations. Accordingly, the operating results for the bank have been
segregated from the results from the continuing operations and reported as a
separate line on the consolidated statements of operations for all periods
presented. The loss for the nine months ended September 30, 1998 includes a
provision of $1,169,000 for the
10
<PAGE> 11
THE PIONEER GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
SEPTEMBER 30, 1998
expected costs to liquidate the bank. The following is an unaudited summary of
the results of discontinued operations for the nine months ended September 30,
1998 and 1997:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
-----------------------
1998 1997
--------- --------
(AMOUNTS IN THOUSANDS)
<S> <C> <C>
Revenues from banking activities............................ $ 2,150 $8,943
------- ------
Loss before income taxes and minority interest.............. $(9,589) $ (132)
Income tax (expense) benefit................................ 311 (66)
------- ------
Loss from discontinued operations........................... (9,278) (198)
------- ------
Minority interest credit.................................... 2,829 149
------- ------
Net loss from discontinued operations....................... $(6,449) $ (49)
======= ======
</TABLE>
NOTE 8 -- FINANCIAL INFORMATION BY BUSINESS SEGMENT
The Company adopted SFAS 131, "Disclosures about Segments of an Enterprise
and Related Information" in 1997. SFAS 131 requires companies to present segment
information using the management approach. The management approach is based on
the way that management organizes the segments within a Company for making
operating decisions and assessing performance. The Company's operating segments
are organized around services and products provided, as well as geographic
regions. The intersegment transactions are for management services and the
secondment of employees. These transactions are generally priced on a cost or
cost plus basis.
11
<PAGE> 12
THE PIONEER GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTE 8 -- FINANCIAL INFORMATION BY BUSINESS SEGMENT
Total revenues and income (loss) by business segment and geographic region,
excluding intersegment transactions (dollars in thousands):
<TABLE>
<CAPTION>
PIONEER
INTERNATIONAL FINANCIAL SERVICES - SUBTOTAL - PIONEER GLOBAL INVESTMENTS
---------------------------------------- PIONEER ---------------------
PIONEER RUSSIAN POLISH INTERNATIONAL U.S.
INVESTMENT FINANCIAL FINANCIAL CZECH FINANCIAL VENTURE
MANAGEMENT SERVICES SERVICES REPUBLIC ASIA SERVICES REAL ESTATE CAPITAL
---------- --------- --------- -------- ----- ------------- ----------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
NINE MONTHS ENDED
SEPTEMBER 30, 1998:
Gross revenues and
sales.................. $ 166,151 $ 7,476 $ 8,476 $1,234 $ -- $ 17,186 $ 825 $ 1,293
========= ======== ======= ====== ===== ======== ======= =======
Intersegment
eliminations........... $ (7,028) $ -- $ -- $ -- $ -- $ -- $ -- $ --
========= ======== ======= ====== ===== ======== ======= =======
Net revenues and sales... $ 159,123 $ 7,476 $ 8,476 $1,234 $ -- $ 17,186 $ 825 $ 1,293
========= ======== ======= ====== ===== ======== ======= =======
Income (loss) before
income taxes and
minority interest...... $ 46,827 $(19,446) $(1,264) $ (796) $(668) $(22,174) $(2,438) $ 7,343
========= ======== ======= ====== ===== ======== ======= =======
Taxes.................... $ 16,933 $ (2,710) $ (112) $ (132) $(257) $ (3,211) $ (779) $ 1,802
========= ======== ======= ====== ===== ======== ======= =======
Minority interest........ $ -- $ (6,862) $ (6) $ -- $ -- $ (6,868) $ -- $ 3,048
========= ======== ======= ====== ===== ======== ======= =======
Net income (loss)........ $ 29,894 $ (9,874) $(1,146) $ (664) $(411) $(12,095) $(1,659) $ 2,493
========= ======== ======= ====== ===== ======== ======= =======
Gross identifiable assets
at September 30,
1998................... $ 325,757 $ 70,174 $23,640 $1,200 $ -- $ 95,014 $ 5,308 $77,098
========= ======== ======= ====== ===== ======== ======= =======
Intersegment
eliminations........... $(171,896) $(14,640) $ -- $ (86) $ -- $(14,726) $ (710) $ (7)
========= ======== ======= ====== ===== ======== ======= =======
Net identifiable assets
at September 30,
1998................... $ 153,861 $ 55,534 $23,640 $1,114 $ -- $ 80,288 $ 4,598 $77,091
========= ======== ======= ====== ===== ======== ======= =======
<CAPTION>
PIONEER GLOBAL INVESTMENTS
------------------------------------- -SUBTOTAL-
CENT. & EAST. OTHER PIONEER TOTAL FROM
EUROPE GOLD RUSSIAN NATURAL GLOBAL CONTINUING
VENTURE CAPITAL MINING TIMBER RESOURCES INVESTMENTS OTHER OPERATIONS
--------------- -------- -------- --------- -------------- -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
NINE MONTHS ENDED
SEPTEMBER 30, 1998:
Gross revenues and
sales.................. $ 4,238 $ 58,387 $ 5,941 $ -- $ 70,684 $ 10,370 $ 264,391
======= ======== ======== ===== ======== ======== =========
Intersegment
eliminations........... $(3,799) $ -- $ -- $ -- $ (3,799) $(10,370) $ (21,197)
======= ======== ======== ===== ======== ======== =========
Net revenues and sales... $ 439 $ 58,387 $ 5,941 $ -- $ 66,885 $ -- $ 243,194
======= ======== ======== ===== ======== ======== =========
Income (loss) before
income taxes and
minority interest...... $(7,847) $(21,525) $(17,253) $(713) $(42,433) $ (2,809) $ (20,589)
======= ======== ======== ===== ======== ======== =========
Taxes.................... $(1,560) $ (4,948) $ (451) $(274) $ (6,210) $ (1,331) $ 6,181
======= ======== ======== ===== ======== ======== =========
Minority interest........ $(4,583) $ (1,556) $ -- $ -- $ (3,091) $ -- $ (9,959)
======= ======== ======== ===== ======== ======== =========
Net income (loss)........ $(1,704) $(15,021) $(16,802) $(439) $(33,132) $ (1,478) $ (16,811)
======= ======== ======== ===== ======== ======== =========
Gross identifiable assets
at September 30,
1998................... $36,701 $137,355 $ 47,217 $ 938 $304,617 $ 33,448 $ 758,836
======= ======== ======== ===== ======== ======== =========
Intersegment
eliminations........... $(1,163) $ -- $ -- $ $ (1,880) $(25,157) $(213,659)
======= ======== ======== ===== ======== ======== =========
Net identifiable assets
at September 30,
1998................... $35,538 $137,355 $ 47,217 $ 938 $302,737 $ 8,291 $ 545,177
======= ======== ======== ===== ======== ======== =========
</TABLE>
12
<PAGE> 13
THE PIONEER GROUP, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) -- (CONCLUDED)
<TABLE>
<CAPTION>
PIONEER
INTERNATIONAL FINANCIAL SERVICES - SUBTOTAL - PIONEER GLOBAL INVESTMENTS
---------------------------------------- PIONEER --------------------------
PIONEER RUSSIAN POLISH INTERNATIONAL U.S.
INVESTMENT FINANCIAL FINANCIAL CZECH FINANCIAL VENTURE
MANAGEMENT SERVICES SERVICES REPUBLIC ASIA SERVICES REAL ESTATE CAPITAL
---------- --------- --------- -------- ----- ------------- ----------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
NINE MONTHS ENDED SEPTEMBER
30, 1997:
Gross revenues and sales..... $ 121,706 $ 33,265 $11,407 $ 639 $ -- $ 45,311 $ 633 $ 1,334
========= ======== ======= ======= ===== ======== ======= =======
Intersegment eliminations.... $ (174) $ (81) $ -- $ -- $ -- $ (81) $ -- $ --
========= ======== ======= ======= ===== ======== ======= =======
Net revenues and sales....... $ 121,532 $ 33,184 $11,407 $ 639 $ -- $ 45,230 $ 633 $ 1,334
========= ======== ======= ======= ===== ======== ======= =======
Income (loss) before income
taxes and minority
interest................... $ 38,440 $ 12,447 $ 2,003 $(1,170) $ -- $ 13,280 $(1,479) $ 8,202
========= ======== ======= ======= ===== ======== ======= =======
Taxes........................ $ 15,373 $ 4,379 $ 1,016 $ (121) $ -- $ 5,274 $ (464) $ 2,198
========= ======== ======= ======= ===== ======== ======= =======
Minority interest............ $ -- $ 3,073 $ (50) $ -- $ -- $ 3,023 $ -- $ 2,749
========= ======== ======= ======= ===== ======== ======= =======
Net income (loss)............ $ 23,067 $ 4,995 $ 1,037 $(1,049) $ -- $ 4,983 $(1,015) $ 3,255
========= ======== ======= ======= ===== ======== ======= =======
Gross identifiable assets at
September 30, 1997......... $ 261,526 $114,913 $12,150 $ 1,151 $ -- $128,214 $ 8,215 $69,879
========= ======== ======= ======= ===== ======== ======= =======
Intersegment eliminations.... $(126,088) $ (3,743) $ -- $ -- $ -- $ (3,743) $ -- $ (7)
========= ======== ======= ======= ===== ======== ======= =======
Net identifiable assets at
September 30, 1997......... $ 135,438 $111,170 $12,150 $ 1,151 $ -- $124,471 $ 8,215 $69,872
========= ======== ======= ======= ===== ======== ======= =======
<CAPTION>
PIONEER GLOBAL INVESTMENTS
------------------------------------- - SUBTOTAL -
CENT. & EAST. OTHER PIONEER TOTAL FROM
EUROPE GOLD RUSSIAN NATURAL GLOBAL CONTINUING
VENTURE CAPITAL MINING TIMBER RESOURCES INVESTMENTS OTHER OPERATIONS
--------------- -------- -------- --------- -------------- -------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
NINE MONTHS ENDED SEPTEMBER
30, 1997:
Gross revenues and sales..... $ 444 $ 61,911 $ 8,934 $ -- $ 73,256 $ 12,657 $ 252,930
======= ======== ======== ===== ======== ======== =========
Intersegment eliminations.... $ -- $ -- $ -- $ -- $ -- $(12,657) $ (12,912)
======= ======== ======== ===== ======== ======== =========
Net revenues and sales....... $ 444 $ 61,911 $ 8,934 $ -- $ 73,256 $ -- $ 240,018
======= ======== ======== ===== ======== ======== =========
Income (loss) before income
taxes and minority
interest................... $(1,166) $ (3,982) $ (3,685) $(415) $ (2,525) $ (2,033) $ 47,162
======= ======== ======== ===== ======== ======== =========
Taxes........................ $ 322 $ (1,329) $ (201) $ (91) $ 435 $ (915) $ 20,167
======= ======== ======== ===== ======== ======== =========
Minority interest............ $ (770) $ 138 $ -- $ -- $ 2,117 $ -- $ 5,140
======= ======== ======== ===== ======== ======== =========
Net income (loss)............ $ (718) $ (2,791) $ (3,484) $(324) $ (5,077) $ (1,118) $ 21,855
======= ======== ======== ===== ======== ======== =========
Gross identifiable assets at
September 30, 1997......... $29,055 $145,673 $ 47,294 $ 970 $301,086 $ 23,988 $ 714,814
======= ======== ======== ===== ======== ======== =========
Intersegment eliminations.... $ -- $ -- $ -- $ -- $ (7) $(15,319) $(145,157)
======= ======== ======== ===== ======== ======== =========
Net identifiable assets at
September 30, 1997......... $29,055 $145,673 $ 47,294 $ 970 $301,079 $ 8,669 $ 569,657
======= ======== ======== ===== ======== ======== =========
</TABLE>
13
<PAGE> 14
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
The consolidated financial statements of The Pioneer Group, Inc. (the
"Company") include the Company's three strategic business units. Pioneer
Investment Management consists of the investment management, marketing,
distribution and servicing of the Company's mutual funds based in the United
States and offshore funds based in Ireland. This business unit also provides
investment management services for institutional investors. Pioneer
International Financial Services consists of the Company's investment management
and financial services businesses in Poland, the Czech Republic, Russia and
India. Pioneer Global Investments consists of the Company's worldwide venture
capital, real estate, gold mining and timber operations. Management's Discussion
and Analysis of Financial Condition and Results of Operations is presented in
three sections: Results of Operations, Liquidity and Capital
Resources -- General, and Future Operating Results.
RESULTS OF OPERATIONS
CONSOLIDATED OPERATIONS
The Company reported a third quarter loss of $16.5 million, or $0.65 per
share, on revenues of $83.7 million. During the third quarter of 1997, the
Company reported net income of $9.5 million, or $0.37 per share, on revenues of
$94.9 million. For the nine months ended September 30, 1998, the Company
reported a loss of $23.3 million, or $0.92 per share, compared to net income of
$21.8 million, or $0.85 per share, in the first nine months of 1997. Results for
the first nine months of 1998 included a loss of $6.5 million, or $0.25 per
share, from the Company's discontinued Russian banking operations. Gross
revenues for the first nine months of 1998 were $243.2 million compared to
$240.0 million during the comparable period in 1997.
Worldwide assets under management were approximately $20.0 billion at
September 30, 1998, compared to $21.0 billion at December 31, 1997 and $21.4
billion at September 30, 1997. At November 6, 1998, the Company managed $22.3
billion of assets worldwide. Pioneer Investment Management's assets under
management at September 30, 1998 were approximately $19.2 billion, compared to
$20.3 billion at December 31, 1997 and $20.7 billion at September 30, 1997.
The table below details earnings per share by business segment for the
third quarter and nine months ended September 30, 1998 versus the third quarter
and nine months ended September 30, 1997.
<TABLE>
<CAPTION>
3 MONTHS 3 MONTHS 9 MONTHS 9 MONTHS
ENDED ENDED ENDED ENDED
SEPT. 30, SEPT. 30, DIFFERENCE: SEPT. 30, SEPT. 30, DIFFERENCE:
BUSINESS SEGMENT 1998 1997 INCR./(DECR.) 1998 1997 INCR./(DECR.)
- ---------------- --------- --------- ------------- --------- --------- -------------
<S> <C> <C> <C> <C> <C> <C>
Pioneer Investment Management:
Mutual Funds and Institutional Accounts...... $ 0.22 $ 0.37 $(0.15) $ 0.97 $ 0.90 $ 0.07
Sale of Class B Share Rights................. 0.21 -- 0.21 0.21 -- 0.21
------ ------ ------ ------ ------ ------
0.43 0.37 0.06 1.18 0.90 0.28
------ ------ ------ ------ ------ ------
Pioneer International Financial Services:
Russia....................................... (0.32) 0.14 (0.46) (0.39) 0.19 (0.58)
Central and Eastern Europe................... (0.03) 0.01 (0.04) (0.07) -- (0.07)
Asia......................................... -- -- -- (0.01) -- (0.01)
------ ------ ------ ------ ------ ------
(0.35) 0.15 (0.50) (0.47) 0.19 (0.66)
------ ------ ------ ------ ------ ------
Pioneer Global Investments:
Venture Capital.............................. (0.11) -- (0.11) 0.03 0.10 (0.07)
Real Estate.................................. (0.02) (0.03) 0.01 (0.06) (0.04) (0.02)
Gold Mining.................................. (0.32) (0.04) (0.28) (0.59) (0.11) (0.48)
Timber....................................... (0.22) (0.06) (0.16) (0.66) (0.13) (0.53)
Other........................................ (0.01) -- (0.01) (0.02) (0.01) (0.01)
------ ------ ------ ------ ------ ------
(0.68) (0.13) (0.55) (1.30) (0.19) (1.11)
------ ------ ------ ------ ------ ------
Interest Expense and Other Expenses............ (0.03) (0.04) 0.01 (0.08) (0.05) (0.03)
------ ------ ------ ------ ------ ------
Total From Continuing Operations........... (0.63) 0.35 (0.98) (0.67) 0.85 (1.52)
------ ------ ------ ------ ------ ------
Discontinued Russian Banking Operations........ (0.02) 0.02 (0.04) (0.25) -- (0.25)
------ ------ ------ ------ ------ ------
Total.................................. $(0.65) $ 0.37 $(1.02) $(0.92) $ 0.85 $(1.77)
====== ====== ====== ====== ====== ======
</TABLE>
14
<PAGE> 15
The table below details revenues and net income by business segment in the
third quarter and nine months ended September 30, 1998 and 1997, respectively,
for the Company's segments:
REVENUES AND NET INCOME
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
REVENUES NET INCOME REVENUES NET INCOME
-------------- --------------- ---------------- ---------------
THREE MONTHS THREE MONTHS NINE MONTHS NINE MONTHS
ENDED ENDED ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30, SEPTEMBER 30,
-------------- --------------- ---------------- ---------------
BUSINESS SEGMENT 1998 1997 1998 1997 1998 1997 1998 1997
- ---------------- ---- ---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Pioneer Investment Management:
Mutual Funds and Institutional
Accounts............................... $49.4 $44.6 $ 5.5 $ 9.6 $151.1 $121.5 $ 24.6 $23.1
Sale of Class B Share Rights............. 8.1 -- 5.3 -- 8.1 -- 5.3 --
----- ----- ------ ----- ------ ------ ------ -----
57.5 44.6 10.8 9.6 159.2 121.5 29.9 23.1
----- ----- ------ ----- ------ ------ ------ -----
Pioneer International Financial Services:
Russia................................... 1.3 17.7 (8.1) 3.5 7.5 33.2 (9.8) 5.0
Central and Eastern Europe............... 3.0 3.5 (0.9) 0.3 9.7 12.1 (1.8) --
Asia..................................... -- -- (0.1) -- -- -- (0.4) --
----- ----- ------ ----- ------ ------ ------ -----
4.3 21.2 (9.1) 3.8 17.2 45.3 (12.0) 5.0
----- ----- ------ ----- ------ ------ ------ -----
Pioneer Global Investments:
Venture Capital.......................... 0.6 0.8 (2.8) (0.2) 1.7 1.8 0.8 2.5
Real Estate.............................. 0.4 0.1 (0.5) (0.8) 0.8 0.6 (1.7) (1.0)
Gold Mining.............................. 17.8 23.5 (8.1) (1.0) 58.4 61.9 (15.0) (2.8)
Timber................................... 3.1 4.7 (5.6) (1.7) 5.9 8.9 (16.8) (3.5)
Other.................................... -- -- (0.1) (0.1) -- -- (0.4) (0.3)
----- ----- ------ ----- ------ ------ ------ -----
21.9 29.1 (17.1) (3.8) 66.8 73.2 (33.1) (5.1)
----- ----- ------ ----- ------ ------ ------ -----
Interest Expense and Other Expenses.......... -- -- (0.6) (0.7) -- -- (1.6) (1.1)
----- ----- ------ ----- ------ ------ ------ -----
Total From Continuing Operations..... $83.7 $94.9 $(16.0) $ 8.9 $243.2 $240.0 $(16.8) $21.9
----- ----- ------ ----- ------ ------ ------ -----
Discontinued Russian Banking Operations...... -- -- (0.5) 0.6 -- -- (6.5) --
----- ----- ------ ----- ------ ------ ------ -----
Totals........................... $83.7 $94.9 $(16.5) $ 9.5 $243.2 $240.0 $(23.3) $21.9
===== ===== ====== ===== ====== ====== ====== =====
</TABLE>
PIONEER INVESTMENT MANAGEMENT
RESULTS OF OPERATIONS
During the third quarter of 1998, Pioneer Investment Management reported
net income of $10.8 million, or $0.43 per share, compared to net income of $9.6
million, or $0.37 per share, in the third quarter of 1997. Third quarter 1998
results included a one-time gain of $5.3 million, or $0.21 per share, from the
Company's sale of its rights to receive future distribution fees and deferred
sales charges from the distribution of Class B Shares of its U.S. based mutual
funds. This gain more than offset the decrease in earnings from operations of
$4.1 million, or $0.15 per share, which resulted principally from the sharp
decline in the U.S. stock market. Decreased operating earnings included $0.9
million, or $0.04 per share, which resulted from the lower value of the
Company's seed money investments in its own mutual funds. Revenues of $57.5
million in the third quarter of 1998 increased by $12.9 million, or 29%. During
the first nine months of 1998, net income was $29.9 million, or $1.18 per share,
compared to net income of $23.1 million, or $0.90 per share, during the first
nine months of 1997. Revenues of $159.2 million in the first nine months of 1998
increased by $37.7 million, or 31%.
Sales of U.S. mutual funds, including reinvested dividends, of slightly
under $1.0 billion in the third quarter continued at a record pace. Sales in the
quarter exceeded sales in last year's third quarter by 28%. Net sales were $0.3
billion in the third quarter of 1998 compared to $0.1 billion in the third
quarter of 1997. Sales of $3.0 billion in the first nine months of 1998 exceeded
the prior year's comparable period by $1.0 billion or 47%. Net sales in the
first nine months of 1998 were $1.2 billion compared to $0.4 billion in the
first nine months of 1997.
15
<PAGE> 16
Management fee revenues of $32.3 million and $98.1 million for the third
quarter and nine months ended September 30, 1998, increased by $2.0 million and
$17.6 million, respectively, over the comparable 1997 periods. These increases
principally reflected higher average assets under management resulting from
gains in the U.S. stock market earlier in 1998, and an increase in net sales of
mutual fund shares.
Underwriting commissions and distribution fees of $7.5 million and $21.7
million for the third quarter and nine months ended September 30, 1998,
increased by $1.8 million and $6.6 million, respectively, over the comparable
1997 periods, principally from increased distribution fees earned from higher
average Class B and C share assets under management. Shareholder service fees of
$8.1 million and $23.2 million for the third quarter and nine months ended
September 30, 1998, increased by $1.2 million and $3.0 million, respectively,
over the comparable 1997 periods, from growth in shareholder accounts.
Costs and expenses increased by $10.6 million in the third quarter of 1998
to $39.7 million. Approximately $3.1 million of the expense increase resulted
from higher payroll costs, part of which related to the Company's efforts to
strengthen its investment management and sales and marketing staff. An
additional $2.7 million of the increase in expenses resulted from higher mutual
fund distribution costs, including the printing and mailing of sales literature,
paying commissions earned by the sales force, mutual fund advertising and public
relations. Approximately $1.3 million of the increase in expenses resulted from
higher expenses associated with the amortization of dealer advances resulting
from sales of back-end load mutual fund shares. These amortization expenses were
generally offset by an increase in distribution fees of $1.2 million. Costs and
expenses increased by $27.2 million in the first nine months of 1998 to $111.3
million. Year-to-date increases in expense categories generally reflect the
trends identified for the third quarter.
TAXES
Pioneer Investment Management's effective tax rate for the third quarter
and nine months ended September 30, 1998 decreased to 36% from 40% in the
comparable 1997 periods. The decrease resulted principally from a change in
Massachusetts' tax law which provided certain tax incentives to Massachusetts
based mutual fund companies which maintain and grow their employee base in
Massachusetts.
PIONEER INTERNATIONAL FINANCIAL SERVICES
During the third quarter, Pioneer International Financial Services reported
a loss of $9.1 million, or $0.35 per share, compared to net income of $3.8
million, or $0.15 per share, during the third quarter of 1997. During the first
nine months of 1998, this business unit lost $12.0 million, or $0.47 per share,
compared to net income of $5.0 million, or $0.19 per share, during the first
nine months of 1997. Most of the loss from both periods was from the Company's
Russian financial services operations.
In accordance with generally accepted accounting principles, the Company
has adjusted the cost basis of certain of the securities held in the First
Voucher Fund, its majority-owned investment fund, to reflect the lack of
liquidity in the trading market for Russian equity securities. These
adjustments, which are based on the current estimate of fair value of the
securities, resulted in a third quarter loss of $3.9 million, or $0.15 per
share. Notwithstanding the cost basis adjustment, the Company believes that the
overall value of its interest in the First Voucher Fund continues to exceed its
cost. The First Voucher Fund lost an additional $1.7 million, or $0.07 per
share, associated with receivables deemed uncollectible. The economic turmoil in
Russia also caused losses in the Russian brokerage business in the third quarter
of 1998 of $1.4 million, or $0.06 per share.
Central and Eastern European financial services operations lost $0.03 per
share and $0.07 per share for the three and nine months ended September 30,
1998, compared to essentially break-even operations in both 1997 periods. The
Polish financial services operations have been negatively affected by slow
mutual fund sales and a decrease in assets under management triggered by a sharp
decline in the Polish stock market.
16
<PAGE> 17
PIONEER GLOBAL INVESTMENTS
During the third quarter, Pioneer Global Investments reported a loss of
$17.1 million, or $0.68 per share, compared to a loss of $3.8 million, or $0.13
per share, during the third quarter of 1997. Worldwide venture capital
operations lost $2.8 million, or $0.11 per share, compared to break-even
operations in the third quarter of 1997. During the first nine months of 1998,
Pioneer Global Investments lost $33.1 million, or $1.30 per share, compared to a
loss of $5.1 million, or $0.19 per share, during the first nine months of 1997.
Worldwide venture capital earned $0.03 per share compared to $0.10 per share
during the first nine months of 1997.
U.S. venture capital operations reported a loss of $0.05 per share during
the third quarter of 1998, principally as the result of lower market values of
publicly held companies, compared to earnings of $0.01 per share in the third
quarter of 1997. Central and Eastern European venture capital operations lost
$0.06 per share as a result of write-downs in the Polish venture capital
portfolio and expenses associated with the start-up of the Company's Russian
venture capital operations. The Company has determined that it will cease
operating the Russian venture capital business in the fourth quarter of 1998.
U.S. venture capital operations reported earnings of $0.10 per share during the
first nine months of 1998, compared to $0.13 per share in the first nine months
of 1997.
The Company has retained an investment banking firm to assist in the sale
of its gold mine. With respect to its timber operations, the Company is holding
discussions with several potential strategic partners.
GOLD MINING BUSINESS
The results of the gold mining business are substantially attributable to
the operations of Teberebie Goldfields Limited ("TGL"). The Company's reported
losses give effect to the 10% minority interest in TGL held by the Government of
Ghana. Gold mining results are also affected by Pioneer Goldfields Limited's
("PGL") exploration activity in Africa and by the exploration activities in the
Russian Far East of Closed Joint-Stock Company, "Tas-Yurjah Mining Company"
("Tas-Yurjah"), the Company's Russian subsidiary. Exploration costs are charged
to operations as incurred.
RESULTS OF OPERATIONS
For the three and nine months ended September 30, 1998, the gold mining
segment lost $8.1 million, or $0.32 cents per share, and $15.0 million, or $0.59
cents per share, respectively. The segment reported losses of $1.0 million and
$2.8 million for the corresponding periods in 1997. The losses were tax
benefited at rates of 18% and 25% for the respective three and nine months ended
September 30, 1998 compared with 19% and 24% for the respective three and nine
months ended September 30, 1997.
The table below details the earnings per share for the gold mining segment
for the three and nine months ended September 30, 1998 versus September 30,
1997.
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
---------------- DIFFERENCE: ---------------- DIFFERENCE:
1998 1997 INCR./(DECR.) 1998 1997 INCR./(DECR.)
---- ---- ------------- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
African Operations(TGL)....... $(0.29) $ 0.00 $(0.29) $(0.51) $(0.04) $(0.47)
African Exploration........... (0.01) (0.02) 0.01 (0.04) (0.03) (0.01)
------ ------ ------ ------ ------ ------
PGL Total................... (0.30) (0.02) (0.28) (0.55) (0.07) (0.48)
------ ------ ------ ------ ------ ------
Russian Exploration........... (0.02) (0.02) 0.00 (0.04) (0.04) 0.00
------ ------ ------ ------ ------ ------
Total............... $(0.32) $(0.04) $(0.28) $(0.59) $(0.11) $(0.48)
====== ====== ====== ====== ====== ======
</TABLE>
Gold Sales
Revenues decreased by $5.7 million to $17.8 million in the third quarter of
1998 compared with 1997 as gold shipments decreased by 10,800 ounces, or 16%, to
58,600 ounces, while the average realized price of gold
17
<PAGE> 18
decreased by $35 from $338 to $303 per ounce. During the three months ended
September 30, 1998 and 1997, the average realized price of gold included
proceeds of $15 per ounce and $17 per ounce, respectively, from the sale of
floor program options. Revenues decreased by $3.5 million to $58.4 million
during the first nine months of 1998 compared with 1997 as a 4% increase in gold
sales to 188,100 ounces was more than offset by a 9% decrease in the average
realized gold price to $310 per ounce. The average realized price of gold
included proceeds from the sale of floor program options of $17 per ounce and $6
per ounce, respectively, for the nine months ended September 30, 1998 and 1997.
TGL's floor program expired on September 30, 1998.
Gold Production and Costs
The table below compares TGL's production and shipment results, cash costs
and total costs per ounce for the three and nine months ended September 30,
1998, with the comparable periods in 1997.
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------ INCREASE/ -------------------- INCREASE/
1998 1997 (DECREASE) 1998 1997 (DECREASE)
---- ---- ---------- ---- ---- ----------
<S> <C> <C> <C> <C> <C> <C>
Production (ounces).......... 58,600 69,400 (10,800) 188,100 180,900 7,200
Shipments (ounces)........... 58,600 69,400 (10,800) 188,100 180,900 7,200
Cash costs:
Production costs........... $ 303 $ 194 $ 109 $ 252 $ 202 $ 50
Royalties.................. 9 10 (1) 9 10 (1)
General and
administrative.......... 34 29 5 31 34 (3)
------- ------- -------- -------- -------- ------
Cash costs per ounce....... 346 233 113 292 246 46
------- ------- -------- -------- -------- ------
Non-cash costs:
Depreciation and
amortization............ 103 88 15 98 87 11
Other...................... 5 4 1 4 5 (1)
------- ------- -------- -------- -------- ------
Cost of production per
ounce................... 454 325 129 394 338 56
------- ------- -------- -------- -------- ------
Interest and other costs..... 22 18 4 21 14 7
------- ------- -------- -------- -------- ------
Total costs per
ounce............ $ 476 $ 343 $ 133 $ 415 $ 352 $ 63
======= ======= ======== ======== ======== ======
</TABLE>
Since a significant portion of TGL's costs are fixed (and unrelated to
production levels), the cost per ounce tends to increase as production
decreases. In addition, the cycle from leaching to gold production, or leach
cycle, is estimated at between three and six months. Accordingly, ore production
shortfalls in the second quarter contributed to an increase in the cost per
ounce in the third quarter of 1998. During the second quarter, several factors
caused production to fall short of forecasted levels. The most significant was
the drought-related hydroelectric power shortage, which severely decreased
crusher availability. Although power shedding and rationing occurred elsewhere
in Ghana, TGL's power supply was virtually uninterrupted in the third quarter of
1998. In this connection, the Republic of Ghana purchased additional power from
Cote d'Ivoire, expanded the thermal power generation plant at Takoradi and
leased a power plant with approximately thirty megawatts of generating capacity.
TGL leased sufficient back-up power generation equipment to sustain all major
processing equipment. With respect to other second quarter crusher availability
issues, equipment vendor representatives commenced work on electrical controls
and instrumentation problems occurring at the gyratory stockpile feeders and
significantly improved the flow of spare parts and wear liners. TGL continues to
emphasize maintenance employee training and process improvements to minimize the
level of scheduled and unscheduled crushing equipment downtime. As a result of
the foregoing actions, TGL achieved optimum crushing capacity production levels
of approximately 3.0 million tonnes in the third quarter of 1998. As a result of
the third quarter gold production shortfall described above, TGL has revised its
1998 gold production forecast to approximately 270,000 ounces.
Production Costs. Production costs represent costs attributable to mining
ore and waste and processing the ore through crushing and processing facilities.
TGL's costs of production are affected by ore grade, gold recovery rates, the
waste to ore, or "stripping" ratio, the age and availability of equipment,
weather conditions, availability and cost of labor, haul distances, foreign
exchange fluctuations and the inherent time lag in gold production from heap
leaching operations. Production costs for the three months ended September 30,
1998,
18
<PAGE> 19
increased by $109 compared with the corresponding period in 1997 principally
because of lower production levels. In addition, drilling and blasting costs
were significantly lower in 1997 because of a high incidence of near-surface,
free-digging material. TGL has also upgraded its equipment maintenance program
to improve the availability of equipment, reduce downtime and extend the useful
life of the equipment. While TGL believes that this program will reduce overall
maintenance costs in the future, the immediate effect has been a decrease in
capitalized rebuild costs and an increase in current maintenance costs.
Processing costs increased as a result of lower production levels and an
increase in power costs including purchased power from the national grid and the
rental of backup generators. Production costs for the nine months ended
September 30, 1998, increased by $50 compared with the corresponding period in
1997 primarily because of an expected increase in the stripping ratio. TGL
continues to conduct waste stripping at a level necessary to maintain adequate
ore deliveries and prudent mine development. Mining costs were also higher
because of the aforementioned equipment maintenance program and increase in
drilling and blasting costs. Processing costs increased because of costs
associated with the Phase III mine expansion which was commissioned in the
second quarter of 1997 and higher fuel and rental costs for backup power
generation equipment.
A comparison of key production statistics for the three and nine months
ended September 30, 1998, and September 30, 1997, is shown in the table below:
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
---------------- ----------------
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Tonnes mined (in thousands):
Waste................................................... 7,893 8,133 22,906 19,407
Run-of-mine............................................. -- -- -- 610
------ ------ ------ ------
Tonnes Waste and Run-of-Mine............................ 7,893 8,133 22,906 20,017
Ore..................................................... 2,978 2,879 7,174 7,116
------ ------ ------ ------
Total Tonnes Mined............................ 10,871 11,012 30,080 27,133
====== ====== ====== ======
Stripping Ratio ((waste + run-of-mine)/ore)............. 2.65:1 2.82:1 3.18:1 2.81:1
Ore Processed........................................... 3,021 2,723 7,203 6,563
Process Grade (grams/tonne)............................. 1.18 1.31 1.26 1.25
</TABLE>
Royalties. During the three and nine months ended September 30, 1998 and
September 30, 1997, the royalty rate payable by TGL remained at 3% of operating
revenues, the minimum permitted by law.
General and Administrative Costs. General and administrative costs consist
principally of administrative salaries and related benefits, travel expenses,
insurance, utilities, legal costs, employee meals, rents and vehicle
expenditures. Since these costs are primarily fixed and unrelated to production
levels, the increase of approximately $5 per ounce compared with the three
months ended September 30, 1997 was attributable to the decrease in gold
production. These costs decreased by $3 per ounce compared with the nine months
ended September 30, 1997 because of the elimination of an employee trust fund.
Depreciation and Amortization. Depreciation and amortization increased by
$15 per ounce for the three months ended September 30, 1998 compared with the
corresponding period in 1997, principally because of lower production, which
increased the cost per ounce associated with depreciation recorded on a
straight-line basis and an increase in mining equipment depreciation from
approximately $6.3 million in fourth quarter 1997 additions. These costs
increased by $11 per ounce in the nine months ended September 30, 1998 compared
to the nine months ended September 30, 1997, because of an increase in mining
depreciation associated with 1997 additions and an increase in crusher
depreciation, which is recorded on a units of production basis, as a larger
proportion of ounces were produced at the West Plant which has a higher
depreciable asset base than the East Plant.
Other. Other costs represent a provision for future reclamation costs and
supplies inventory obsolescence and costs related to exploration activities
conducted by TGL at the Teberebie concession and elsewhere in Ghana. Statutory
exploration fees paid to the government incurred during the three months ended
19
<PAGE> 20
September 30, 1998 contributed to the $1 per ounce increase in other costs
compared with the three months ended September 30, 1997. Other costs decreased
by $1 per ounce compared to the nine months ended September 30, 1997 because no
additional obsolescence reserves for spare parts were required in 1998.
Interest and Other Costs. Interest and other costs during the three months
ended September 30, 1998 increased by $4 per ounce compared with the
corresponding 1997 period primarily because these fixed costs, on a per ounce
basis, were affected by the decrease in production levels. During the nine
months ended September 30, 1998, interest and other costs increased by $7 per
ounce compared to the nine months ended September 30, 1997 because of an
increase in interest expense associated with the Phase III expansion, which was
capitalized during the first four months of 1997.
Income Taxes. The statutory tax rate for mining companies in Ghana in 1998
and 1997 was 35%.
EXPLORATION ACTIVITIES
Since the end of 1993, PGL has engaged in exploration activities in the
Republic of Ghana and other African countries. These activities are currently
conducted by TGL in Ghana and by PGL or its local subsidiary in countries
outside of Ghana. In the nine months ended September 30, 1998, PGL incurred
exploration costs of approximately $1.1 million.
In 1994, the Company entered into a joint venture, Tas-Yurjah, to explore
potential gold mining properties in the Khabarovsk Territory of Russia. In the
nine months ended September 30, 1998, the Company expended approximately $0.9
million for Tas-Yurjah exploration work. In October 1998, the Company acquired
an additional 44.5% interest in Tas-Yurjah from its Russian partner, increasing
its direct and indirect interest in Tas-Yurjah to 95%.
LIQUIDITY AND CAPITAL RESOURCES
Cash Flow. The cash balances of the gold mining segment decreased from
$7.6 million to $3.6 million during the first nine months of 1998. Sixty-four
percent, or $2.3 million, of TGL's cash balances remain in escrow and are
unavailable to pay short-term obligations. Cash generated from operating
activities aggregated $3.0 million while capital expenditures and loan principal
payments were $6.9 million and $9.6 million, respectively. Major capital
expenditures during the year included $5.0 million for processing equipment and
pad and pond development, including $3.8 million for leach pad expansion, $1.1
million for mining equipment and $0.3 million for vehicles.
Third-Party Debt. At the end of the first nine months of 1998,
third-party debt aggregated $43.9 million, including $15.8 million guaranteed by
the Overseas Private Investment Corporation ("OPIC") for which the Company is
subject to limited recourse and $0.6 million from other sources which is
guaranteed by the Company. Scheduled third-party debt service for the remainder
of 1998 is expected to aggregate $2.4 million.
Subordinated Debt. The Company has provided $11.7 million in subordinated
debt financing to TGL to satisfy its short-term liquidity needs, including $7.5
million in 1998. The Company has provided $2.0 million in 1998 to fund the
exploration activities of PGL and Tas-Yurjah.
TIMBER BUSINESS
The Company's Russian venture, Closed Joint-Stock Company "Forest-Starma",
in which the Company has a 97% indirect interest is pursuing the development of
timber production in the Khabarovsk Territory of Russia.
For 1998, Forest-Starma is projected to produce approximately 235,000 cubic
meters of timber, a decrease of 100,000 cubic meters below the target of 335,000
cubic meters reported in the first quarter of 1998. The decrease is attributable
to lower than expected operating productivity due to a fire disruption which
occurred on the Siziman Bay leasehold in the second and third quarter of 1998,
requiring the redeployment of logging crews and equipment to contain the fire.
The fire was contained in the third quarter of 1998 after
20
<PAGE> 21
damage to approximately 7,500 hectares and 5,500 cubic meters of decked logs.
The Company is reviewing whether it has insurance coverage with respect to any
sustained losses. The amount of the insurance recovery, if any, cannot be
determined at this time.
RESULTS OF OPERATIONS
For the three and nine months ended September 30, 1998, Forest-Starma had
revenues of $3.1 million and $5.9 million, respectively. During the
corresponding periods in 1997, Forest-Starma had revenues of $4.7 million and
$8.9 million, respectively. For the three and nine months ended September 30,
1998, Forest-Starma lost $5.6 million, or $0.22 cents per share, and $16.8
million, or $0.66 cents per share, respectively. Forest-Starma lost $1.7
million, or $0.06 cents per share, and $3.5 million, or $0.13 cents per share,
during the corresponding periods in 1997. Production during the three and nine
months ended September 30, 1998, was 45,000 and 137,000 cubic meters,
respectively, compared to 78,000 and 190,000 cubic meters, respectively, during
the corresponding periods in 1997. Shipments during the 1998 periods were
109,000 and 191,000 cubic meters, respectively, compared to 73,000 and 136,000
cubic meters, respectively, in 1997.
During the fourth quarter of 1998 to date, timber prices in key Pacific rim
markets increased by approximately 55% to an average of $45 per cubic meter
compared with the prior quarter's average of $29 per cubic meter. During the
first nine months of 1998, however, timber prices in these markets declined
steadily resulting in lower average realized prices for shipments ($32 per cubic
meter versus $64 per cubic meter) and a significant reduction in the valuation
of inventory. At December 31, 1997 and September 30, 1998, timber inventory
aggregated 73,000 cubic meters and 14,000 cubic meters, respectively. During the
three and nine months ended September 30, 1998, lower than expected production
levels resulted in an increase in the cost per cubic meter produced. Since
inventories are recorded on a lower of cost or market basis, inventories were
written-down during the nine months ended September 30, 1998 by approximately
$3.8 million. No inventory adjustments were required during the first nine
months of 1997.
Cost of Goods Sold. Forest-Starma values its inventory at the lower of
cost or market using the full absorption accounting method. Accordingly, costs
of goods sold of $5.7 million and $14.4 million in the third quarter and nine
months ended September 30, 1998, respectively, included all operating costs such
as payroll, fuel, spare parts, site related general and administrative expenses,
amortization, depreciation and other taxes. The cost of goods sold also includes
the inventory valuation reductions discussed previously. During the third
quarter of 1998, the average production cost, including the cost of fire
fighting, was $87 per cubic meter. Cost of goods sold during the three and nine
months ended September 30, 1997 aggregated approximately $4.7 million and $8.5
million, respectively.
Depreciation and Amortization. Depreciation and amortization expense,
which is included in cost of goods sold, was $0.6 million and $1.8 million,
respectively, for the third quarter and nine months ended September 30, 1998.
Depreciation and amortization in the corresponding 1997 periods were $0.8
million and $1.9 million, respectively. The logging equipment, roads and jetty
represent approximately 90% of fixed assets and are recorded at cost and
depreciated on a units-of-production basis, which anticipates recovery over
five, twenty and thirty years respectively. Development costs are amortized on a
units-of-production basis, which anticipates recovery over ten years.
Other expenses. Other expenses of $2.7 million in the third quarter and
$8.1 million in the nine months ended September 30, 1998, include interest
expense, management fees, effects of foreign exchange, political risk insurance
premiums, and goodwill amortization. Other expenses in the corresponding 1997
periods were $1.4 million and $3.5 million, respectively.
LIQUIDITY AND CAPITAL RESOURCES
Project Financing. Capital required by this venture is now projected at
approximately $66.4 million through the end of 1998. At September 30, 1998,
project financing aggregated $65.3 million including $46.5 million in
subordinated debt and accrued interest provided by the Company, $12 million in
unpaid liabilities to the Company for ongoing operating expenses and $6.8
million in outstanding third party financing. Forest-Starma completed a $9.3
million project financing with OPIC in July 1996, of which $6.8 million
21
<PAGE> 22
remained outstanding at September 30, 1998. Remaining scheduled third-party debt
service for 1998 is expected to aggregate $1 million.
LIQUIDITY AND CAPITAL RESOURCES -- GENERAL
The Company's liquid assets consisting of cash and marketable securities
(exclusive of gold mining and timber operations) decreased by $7.4 million in
the first nine months of 1998 to $56.3 million principally from decreased cash
and investments held by the Russian financial services business.
IRS regulations require that, in order to serve as trustee, the Company
must maintain a net worth of at least 2% of the assets of Individual Retirement
Accounts and other qualified retirement plan accounts at yearend. At September
30, 1998, the Company served as trustee for $5.7 billion of qualified plan
assets and the ratio of net worth to qualified assets was 2.9%. The Company's
stockholders' equity of $162.6 million at September 30, 1998, would permit it to
serve as trustee for up to $8.1 billion of qualified plan assets.
The Company entered into an agreement in 1996 with a syndicate of
commercial banks for a senior credit facility (the "Credit Facility"). Under the
Credit Facility, the Company could borrow up to $60 million (the "B-share
Revolver") to finance Dealer Advances relating to sales of back-end load shares
of the Company's domestic mutual funds. In September 1998, the Company sold to a
third party its rights to receive future distribution fees and deferred sales
charges from the distribution of Class B Shares of Pioneer Mutual Funds. The
agreement also provides for the sale at a premium of additional rights arising
out of future sales of Class B Shares on a monthly basis over the next three
years, thereby eliminating the need of financing Class B Shares as the Company
had previously done. The Company used the proceeds from the sale of B-share
rights to repay the $49.5 million outstanding under the B-share Revolver and the
B-Share Revolver was terminated in October 1998.
The Credit Facility also provides that the Company may borrow up to $80
million for general corporate purposes (the "Corporate Revolver"). The Corporate
Revolver is payable in full in June 2001. Advances under the Corporate Revolver
bear interest, at the Company's option, at (a) the higher of the bank's base
lending rate or the federal funds rate plus 0.50% or (b) LIBOR plus the
applicable margin, tied to the Company's financial performance, of either 0.75%,
1.25%, 1.50% or 1.75%. The Credit Facility provides that the Company must pay
additional interest at the rate of 0.375% per annum of the unused portion of the
facility and an annual arrangement fee of $35,000. At September 30, 1998, the
Company had borrowed $69 million under the Corporate Revolver.
The Credit Facility contains restrictions that limit, among other things,
encumbrances on the assets of the Company's domestic mutual fund subsidiaries
and certain mergers and sales of assets. Additionally, the Credit Facility
requires that the Company meet certain financial covenants including covenants
that require the Company to maintain certain minimum ratios with respect to debt
to cash flow and interest payments to cash flow and a minimum tangible net
worth, all as defined in the Credit Facility. As of September 30, 1998, the
Company was in compliance with all applicable covenants.
In 1997, the Company entered into an agreement (the "Note Agreement") with
a commercial lender pursuant to which the Company issued to the lender Senior
Notes in the aggregate principal amount of $20 million. The Senior Notes, which
bear interest at the rate of 7.95% per annum, have a maturity of seven years.
The restrictions and financial covenants under the Note Agreement are
substantially similar to the restrictions and financial covenants in the Credit
Facility.
------------------------
THE COMPANY BELIEVES THAT IT IS IN SOUND FINANCIAL CONDITION, THAT IT HAS
SUFFICIENT LIQUIDITY FROM OPERATIONS AND FINANCING FACILITIES TO COVER
SHORT-TERM COMMITMENTS AND CONTINGENCIES AND THAT IT HAS ADEQUATE CAPITAL
RESOURCES TO PROVIDE FOR LONG-TERM COMMITMENTS.
22
<PAGE> 23
RECENT ACCOUNTING PRONOUNCEMENTS
In April 1998, the American Institute of Certified Public Accountants (the
"AICPA") issued Statement of Position 98-5, "Reporting on the Costs of Start-Up
Activities". The new standard requires that entities expense costs of start-up
activities as those costs are incurred. The term start-up includes
pre-operating, pre-opening and organization activities. The Company has
capitalized certain pre-operating costs in connection with its natural resource
operations, and has capitalized certain organizational costs associated with its
emerging markets financial services operations. The statement must be adopted by
the first quarter of 1999. At adoption, the Company must record a cumulative
effect of a change in accounting principle and write-off all remaining
unamortized start-up costs. At this time, the Company has estimated unamortized
capitalized start-up costs of approximately $20 million related principally to
its timber operations. The Company considers the charge associated with the
adoption of this statement as material to the Company's results of operations.
FUTURE OPERATING RESULTS
Certain of the information contained in this Quarterly Report on Form 10-Q,
including information with respect to the Company's plans and strategies for its
domestic and international financial services and global investment business
units, consists of forward-looking statements. For this purpose, any statements
contained herein that are not statements of historical fact may be deemed to be
forward-looking statements. Without limiting the foregoing, the words
"believes," "anticipates," "plans," "expects," "projects," "estimates" and
similar expressions are intended to identify forward-looking statements.
Important factors that could cause actual results to differ materially from
those indicated by such forward-looking statements include, but are not limited
to, the following:
The Company derives a significant portion of its revenues from investment
management fees and underwriting commissions and shareholder services fees.
Success in the investment management and mutual fund share distribution
businesses is substantially dependent on investment performance. Good
performance stimulates sales of shares and tends to keep redemptions low. Sales
of shares result in increased assets under management, which, in turn, generate
higher management fees and distribution fees. Good performance also attracts
institutional accounts. Conversely, relatively poor performance results in
decreased sales and increased redemptions and the loss of institutional
accounts, with corresponding decreases in revenues to the Company. Investment
performance may also be affected by economic or market conditions which are
beyond the control of the Company. In addition, four of the Company's mutual
funds (including the three largest funds) have management fees which are
adjusted based upon the funds' performance relative to the performance of an
established index. As a result, management fee revenues may be subject to
unexpected volatility.
The mutual fund industry is intensely competitive. Many organizations in
this industry are attempting to sell and service the same clients and customers,
not only with mutual fund investments but with other financial services
products. Some of the Company's competitors have more products and product lines
and substantially greater assets under management and financial resources.
The Company and its domestic financial services subsidiaries are primarily
dependent upon their associations with the Pioneer Family of Mutual Funds with
which they have contractual relationships. In the event any of the management
contracts, underwriting contracts or service agreements was canceled or not
renewed pursuant to the terms thereof, the Company may be substantially
adversely affected.
The Securities and Exchange Commission has jurisdiction over registered
investment companies, registered investment advisers, broker-dealers and
transfer agents and, in the event of a violation of applicable rules or
regulations by the Company or its subsidiaries, may take action which could have
a serious negative effect on the Company and its financial performance.
Because a material portion of the Company's revenues are derived from the
mining and sale of gold by TGL, the Company's earnings are directly impacted by
gold production, the cost of such production, and the price of gold. TGL's gold
production is dependent upon a number of factors that could cause actual gold
production to differ materially from projections, including obtaining and
maintaining necessary equipment, accessing key supplies, and hiring and training
supervisory personnel and skilled workers. Gold production is
23
<PAGE> 24
also affected by the time lag inherent in heap leaching technology, subject to
weather conditions and dependent on the continued political stability in the
Republic of Ghana. Gold prices have historically fluctuated significantly and
are affected by numerous factors, including expectations for inflation, the
strength of the U.S. dollar, global and regional demand, central bank gold
supplies and political and economic conditions. If, as a result of a decline in
gold prices, TGL's revenues from gold sales were to fall below cash costs of
production, and to remain below cash costs of production for any substantial
period, the Company could determine that it is not economically feasible for TGL
to continue commercial production.
TGL is dependent upon a number of key supplies for its mining operations,
including electric power, cement, diesel fuel, electricity, explosives,
lubricants, tires and sodium cyanide. There can be no assurance that a
disruption in the supplies to TGL of these key materials will not occur and
adversely affect the Company's operations.
The operations at TGL depend on its ability to recruit, train and retain
employees with the requisite skills to operate large-scale mining equipment.
Although TGL offers its employees an attractive compensation package,
competition for skilled labor is strong among the various mines in Ghana. There
can be no assurance that the Company's operations will not be adversely affected
by a shortage of skilled laborers or by an increase in the time required to
fully train new employees.
The Company has incurred considerable expenses in connection with the
Forest-Starma timber project located in the Russian Far East. Forest-Starma has
commenced harvesting and has made shipments of timber. The commercial
feasibility of Forest-Starma is, however, dependent upon a number of factors
which are not within the control of the Company including the price of timber,
weather conditions, political stability in Russia and the strength of the
Japanese economy, the primary market for Forest-Starma's timber. While the
Company continues to believe that the project will achieve commercial
feasibility in the long term, there can be no assurance that it will do so.
The Company has a significant number of operations and investments located
outside of the U.S., including the gold mining operations at TGL, the timber
operations in the Russian Far East and the financial services operations in
Eastern and Central Europe. Foreign operations and investments may be adversely
affected by exchange controls, currency fluctuations, taxation, political
instability, ineffective regulatory oversight and laws or policies of the
particular countries in which the Company may have operations. There is no
assurance that permits, authorizations and agreements to implement plans at the
Company's projects can be obtained under conditions or within time frames that
make such plans economically feasible, that applicable laws or the governing
political authorities will not change or that such changes will not result in
the Company's having to incur material additional expenditures.
YEAR 2000
SUMMARY
The Company has for some time been addressing actively the potential impact
of the Year 2000 problem to its businesses and has established a comprehensive
project to help ensure that all of its business units will be able to function
normally before, during and after the century date rollover. Furthermore, the
Company is aware that Year 2000 issues have the potential to impact the capital
markets and macroeconomic conditions globally. While the Company is monitoring
the threat of such impact and is taking measures reasonably designed to protect
the investments of its fund shareholders and corporate investors there can be no
assurance that factors outside its control will not disrupt the Company's
operations.
MANAGEMENT
The Company is executing and managing its Year 2000 project activities at
several levels within the organization, including:
- regular senior-level management briefings
- oversight subcommittee established by the Trustees of the Company's U.S.
mutual funds
24
<PAGE> 25
- Year 2000 Steering Committee comprised of representatives from all
operational areas empowered to review progress and ensure the successful
completion of the Year 2000 project
- Year 2000 project office responsible for centralized monitoring,
reporting and support of project activities
- local project managers within each subsidiary of the Company responsible
for executing local Year 2000 plans
The Company is separately tracking the Year 2000 readiness of each of its
corporate entities and has created comprehensive reporting for each project team
worldwide. The Company has developed reports to monitor risk management and
project status both for systems and vendors. The Company may also utilize, on an
as needed basis, the services of outside companies and consultants specializing
in Year 2000 issues.
APPROACH AND STATUS
The Company's Year 2000 initiative addresses hardware, software, embedded
systems and vendor systems and consists of the following six phases:
- Awareness -- communicating management's commitment to identify and
resolve Year 2000 issues
- Inventory, Assessment, and Planning -- identifying all systems and
vendors with potential Year 2000 problems, rating the business
criticality of each, and planning for all project tasks
- Repair -- executing all necessary system remediation plans
- Testing -- ensuring that all remediated systems function correctly in
both current date and future date environments
- Contingency Planning -- developing project contingency and business
continuation plans for each business unit
- Vendor Analysis -- working closely with all important third parties to
ensure that their systems and businesses have adequately addressed Year
2000 issues
The Company has completed both the awareness and assessment phases and is
nearing completion of the repair phase with respect to its core systems. The
testing and contingency planning phases are well underway and will continue into
1999. Vendor analysis is ongoing and will continue through the end of the
project. The Company intends to complete the repair phase of its core systems by
the end of 1998. To date, the Company has tested a substantial portion of its
internal information technology systems and non-information technology systems
and expects to complete the remaining testing in early 1999.
The Company will undertake the following additional activities in 1999:
- testing any vendor systems delivered in late 1998 or 1999
- conducting company-wide integration tests
- correcting and retesting any problems that were discovered during initial
testing
- participating in tests with third parties, including both point-to-point
testing with vendors with whom the Company shares automated data
transfers and industry-wide testing
- finalizing the development of contingency plans
CERTAIN RISKS AND CONTINGENCY PLANNING
The Company is heavily dependent on third party software and vendor
services. As a result, the Company's believes that its greatest risk from the
Year 2000 transition is its reliance on vendors to complete their own Year 2000
projects successfully and on time. Although the majority of the Company's most
critical "core" applications are provided by vendors, most of them are
relatively new and have been certified as Year
25
<PAGE> 26
2000 compliant. With respect to each system, the Company closely monitors Year
2000 status and will continue testing throughout the coming year.
The Company has developed, and will continue to refine, its contingency
plans. The approach to contingency planning has two components: (i) ensuring the
ability to achieve Year 2000 compliance, even in the event of a vendor failure
in 1999; and (ii) preparing business continuity plans for various potential
failure scenarios which, despite the Company's best efforts, could occur on or
around January 1, 2000.
To date, the Company's initial contingency planning development is
approximately 75% complete. Plans will continue to be reviewed and revised, as
necessary, throughout 1999. Finally, the Company has disaster recovery plans in
place to address potential infrastructure failures, including basic services
such as electrical power and telecommunications, and is leveraging and enhancing
those plans to address potential Year 2000 scenarios. Such plans, however,
generally provide relatively short-term solutions. In the event of a long-term
infrastructure failure caused by a Year 2000 problem, the Company may be exposed
to business continuity risks similar to those faced by other financial services
companies.
COSTS
Total Year 2000 project costs are based on currently available information
and management's estimates with respect to the costs of repairing and replacing
software, hardware, embedded systems and vendor systems. For the purposes of the
following estimates, the Company defines costs as incremental expenditures. Cost
estimates include both period costs and disbursements that typically would be
treated as capital but do not include overhead with respect to the portion of
certain employees' time allocated to the Year 2000 project or opportunity costs
associated with other projects that may have been delayed by the Year 2000
project.
As of September 30, 1998, the Company had incurred and expensed
approximately $1.0 million in connection with its Year 2000 project. The Company
estimates its total remaining costs to be approximately $1.5 million, which will
be expensed as incurred over the next year and a half. All Year 2000 project
costs have been and will continue to be funded from operating cash flows.
The Year 2000 project costs are relatively minimal primarily because the
Company owns little internally developed code. The result of the Company's
strategy of outsourcing technology-based operations is that it has only a small
base of proprietary code that must be analyzed and remediated. Consequently, the
cost of the Year 2000 compliance efforts are not expected to be material to the
Company's financial position. The Company believes that it will not incur
significant Year 2000 related costs on behalf of third parties from whom it
purchases technology or outsources technology-based functions.
------------------------
The Company's ability to complete its Year 2000 project by the dates
projected and the total costs incurred to accomplish those efforts are based on
estimates of the Company's management in reliance on certain assumptions. Such
assumptions include, among others, the Company's ability to locate and identify
all potential Year 2000 issues in the systems it uses, successful remediation
efforts by the Company's vendors and other third parties upon which it relies,
the continued availability of personnel capable of carrying out the Year 2000
project efforts and the availability of suitable alternative software and
systems. There can be no assurances that management's reliance on such
assumptions will prove to be valid. The failure of any these assumptions to hold
true or the existence of additional significant uncertainties could result in
the inaccurateness of any of the foregoing estimates. As a result, actual
completion of the Company's Year 2000 project could be later than anticipated or
involve costs materially higher than those estimated.
Furthermore, the impact of any such failures on the Company's customers or
other third parties could vary significantly, as could such customers' or third
parties' definitions of Year 2000 compliance; therefore, the extent of any
claims resulting from such failures is difficult to estimate. There can be no
assurance that the costs of resolving any such claims will not materially affect
the Company's business, financial condition or results of operations.
26
<PAGE> 27
PART II -- OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
The Exhibits filed with this Quarterly Report on Form 10-Q are listed on
the "Index to Exhibits" below.
(b) Reports filed on form 8-K: None.
27
<PAGE> 28
SIGNATURES
It is the opinion of management that the financial information contained in
this report reflects all adjustments necessary to a fair statement of results
for the period report, but such results are not necessarily indicative of
results to be expected for the year due to the effect that stock market
fluctuations may have on assets under management. All accounting policies have
been applied consistently with those of prior periods. Such financial
information is subject to year-end adjustments and annual audit by independent
public accountants.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE PIONEER GROUP, INC.
Dated: November 16, 1998
/s/ WILLIAM H. KEOUGH
------------------------------------
WILLIAM H. KEOUGH
SENIOR VICE PRESIDENT,
CHIEF FINANCIAL OFFICER AND
TREASURER
28
<PAGE> 29
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- ------------------------------------------------------------
<C> <S>
10.1 Amendment No. 5 to Credit Agreement dated as of July 21,
1998, among The Pioneer Group, Inc. (the "Company"), certain
of its subsidiaries, the Lenders and The First National Bank
of Boston.
10.2 Amendment No. 6 to Credit Agreement dated as of September
30, 1998, among the Company, certain of its subsidiaries,
the Lenders and The First National Bank of Boston.
10.3 Supplemental Agreement No. 1 dated as of September 30, 1998
amending the Note Agreement dated as of August 14, 1997 by
and between the Company and The Travelers Insurance Company
("Travelers").
10.4 Supplemental Agreement No. 2 dated as of September 30, 1998
amending the Note Agreement dated as of August 14, 1997 by
and between the Company and Travelers.
10.5 Pioneer Program Master Agreement dated as of September 30,
1998 among the Company, certain of its subsidiaries, PLT
Finance, L.P., Putnam, Lovell, DeGuardiola & Thornton Inc.
and Bankers Trust Company (Confidential Treatment
Requested).
10.6 Amendment No. 4 to Credit Agreement dated as of April 21,
1998, among the Company, certain of its subsidiaries, the
Lenders and The First National Bank of Boston.
11 Computation of earnings per share.
27.98 Financial Data Schedule.
27.97 Financial Data Schedule.
</TABLE>
<PAGE> 1
EXHIBIT - 10.1
THE PIONEER GROUP, INC.
CREDIT AGREEMENT
AMENDMENT NO. 5
This Agreement, dated as of July 21, 1998, is among The Pioneer Group,
Inc., a Delaware corporation (the "Company"), certain of its subsidiaries listed
on the signature pages hereto, the Lenders (as defined in the Credit Agreement
referenced below) and BankBoston, N.A., f/k/a The First National Bank of Boston,
as agent (the "Agent") for itself and the other Lenders. The parties agree as
follows:
1. REFERENCE TO CREDIT AGREEMENT; DEFINITIONS. Reference is made to the Credit
Agreement dated as of June 6, 1996, among the Company, certain of its
subsidiaries, the Lenders and the Agent (as amended, modified and in effect
prior to giving effect to this Agreement, the "Credit Agreement"). Terms defined
in the Credit Agreement as amended hereby (the "Amended Credit Agreement") and
not otherwise defined herein are used herein with the meanings so defined.
Except as the context otherwise explicitly requires, the capitalized terms
"Section" and "Exhibit" refer to sections hereof and exhibits hereto.
2. AMENDMENTS TO CREDIT AGREEMENT. Subject to all of the terms and conditions
hereof and in reliance upon the representations and warranties set forth in
Section 3, the Credit Agreement is amended as follows, effective upon the date
(the "Amendment Date") that the conditions specified in Section 4 are satisfied,
which conditions must be satisfied no later than July 21, 1998 or this Agreement
shall be of no force or effect:
1. ADDITION OF SECTION 1.1A. A new Section 1.1A is added to the Credit
Agreement immediately after Section 1.1 of the Credit Agreement to read in its
entirety as follows:
"1.1A "ADJUSTED COMPANY TOTAL DEBT" means, at any date, Company Total Debt
PLUS the B Share Loan."
2. AMENDMENT OF SECTION 1.4. Section 1.4 of the Credit Agreement is amended
to read in its entirety as follows:
"1.4. "APPLICABLE MARGIN" means, with respect to any portion of the
Revolving Loan or B Share Revolving Loan subject to a Pricing Option,
(1) on or after the date of this Amendment No. 5 but prior to the first
anniversary of the date of this Amendment No. 5:
<PAGE> 2
(a) on any date that Adjusted Company Total Debt is less than or equal
to 200% of Combined Adjusted Mutual Fund Cash Flow, 1.25%;
(b) on any date that Adjusted Company Total Debt is greater than 200%
but less than or equal to 250% of Combined Adjusted Mutual Fund Cash Flow,
1.50%; and
(c) on any date that Adjusted Company Total Debt is greater than 250%
of Combined Adjusted Mutual Fund Cash Flow, 1.75%; and
(2) on and after the first anniversary of the date of this Amendment No. 5:
(a) on any date that Adjusted Company Total Debt is less than or equal
to 100% of Combined Adjusted Mutual Fund Cash Flow, 1.125%;
(b) on any date that Adjusted Company Total Debt is greater than 100%
but less than or equal to 200% of Combined Adjusted Mutual Fund Cash Flow,
1.25%;
(c) on any date that Adjusted Company Total Debt is greater than 200%
but less than or equal to 250% of Combined Adjusted Mutual Fund Cash Flow,
1.50%; and
(d) on any date that Adjusted Company Total Debt is greater than 250%
of Combined Adjusted Mutual Fund Cash Flow, 1.75%.
For purposes of calculating the Applicable Margin, (1) Adjusted
Company Total Debt shall be determined as of the last day of the most
recently ended fiscal quarter for which financial statements have been
furnished (or are required to have been furnished) by the Company to the
Agent pursuant to Sections 7.4.1 or 7.4.2 and (2) Combined Adjusted Mutual
Fund Cash Flow shall be determined for the period of four consecutive
fiscal quarters of the Company then ended. Any adjustment in the Applicable
Margin shall take effect upon the earlier of (i) the date upon which the
financial statements referred to in the foregoing sentence are furnished or
(ii) the date such financial statements are required to be furnished by the
Company to the Agent. If for any reason the Company shall not have
furnished the financial statements required by Sections 7.4.1 or 7.4.2 upon
the expiration of the period specified in Section 9.1.2, then the
Applicable Margin shall be deemed to be the highest margin specified by
this Section 1.4."
3. AMENDMENT TO SECTION 1.5. Section 1.5 of the Credit Agreement is amended
to read in its entirety as follows:
"1.5. "APPLICABLE RATE" means, at any date,
(1) with respect to any Loan
<PAGE> 3
(a) for each portion of any Loan subject to a Pricing Option, the
sum of the Eurodollar Rate with respect to such Pricing Option
PLUS the Applicable Margin; and
(b) for each other portion of any Loan, the Base Rate;
PLUS (2) in each case, an additional 2% effective on the day the Agent
notifies (which notice the Agent shall be required to give upon the
written request of the Required Lenders) the Company that the interest
rates hereunder are increasing as a result of the occurrence of an
Event of Default until the earlier of such time as (i) such Event of
Default is no longer continuing or (ii) such Event of Default is
deemed no longer to exist, in each case pursuant to Section 9.3."
4. ADDITION OF SECTION 1.37A. A new Section 1.37A is added to the Credit
Agreement immediately after Section 1.37 of the Credit Agreement to read in its
entirety as follows:
"1.37A "COMBINED ADJUSTED MUTUAL FUND CASH FLOW" means, for any period,
Combined Mutual Fund Cash Flow PLUS Distribution Fees."
5. ADDITION OF SECTION 7.19. A new Section 7.19 is added to the Credit
Agreement immediately after Section 7.18 of the Credit Agreement to read in its
entirety as follows:
"7.19. YEAR 2000. The material hardware and software systems of the Company
and its Subsidiaries include design, performance and functionality so that
the Company and its Subsidiaries do not reasonably expect to experience
invalid or incorrect results or abnormal hardware or software operation
related to calendar year 2000, except such results or abnormal operation
that would not cause a Material Adverse Change to the Company or its
Subsidiaries. To the best of the Company's knowledge after due diligence
and inquiry, the material hardware and software systems of the Company and
its Subsidiaries include, or will include prior to year 2000, calendar year
2000 date conversion and compatibility capabilities, including, but not
limited to, date data century recognition, same century and multiple
century formula and date value calculations, and user interface date data
values that reflect the century."
6. ADDITION OF SECTION 7.20. A new Section 7.20 is added to the Credit
Agreement immediately after Section 7.19 of the Credit Agreement to read in its
entirety as follows:
"7.20. UPSTREAM PAYMENTS. As indicated on page thirty-three of the Pioneer
Bank Syndicate Presentation dated June 30, 1998, the Company will cause the
following to occur by December 31, 1998: (a) Pioneer Capital Corporation
will pay $10 million to the Company and (b) Pioneer Funds Distributor, Inc.
will pay $8 million to the Company."
-3-
<PAGE> 4
7. AMENDMENT TO EXHIBIT 9.1.2 Exhibit 9.1.2 of the Credit Agreement is
amended to read in its entirety set forth on Exhibit 9.1.2 hereto.
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders to enter into
this Agreement, the Company represents and warrants to each of the Lenders that:
1. LEGAL EXISTENCE, ORGANIZATION. Each of the Company and its Subsidiaries
is duly organized and validly existing and in good standing under the laws of
the jurisdiction of its incorporation, with all power and authority, corporate
or otherwise, necessary to (a) enter into and perform this Agreement, the
Amended Credit Agreement and each other Credit Document to which it is party and
(b) own its properties and carry on the business now conducted or proposed to be
conducted by it. Each of the Company and its Subsidiaries has taken, or shall
have taken on or prior to the Amendment Date, all corporate or other action
required to make the provisions of this Agreement, the Amended Credit Agreement
and each other Credit Document to which it is party the valid and enforceable
obligations they purport to be.
2. ENFORCEABILITY. The Company and each of its Subsidiaries which are
signatories hereto have duly executed and delivered this Agreement. Each of this
Agreement and the Amended Credit Agreement is the legal, valid and binding
obligation of the Company and such Subsidiaries and is enforceable in accordance
with its terms.
3. NO LEGAL OBSTACLE TO AGREEMENTS. Neither the execution, delivery or
performance of this Agreement, nor the performance of the Amended Credit
Agreement, nor the consummation of any other transaction referred to in or
contemplated by this Agreement, nor the fulfillment of the terms hereof or
thereof, has constituted or resulted in or will constitute or result in:
(1) any breach or termination of the provisions of any agreement,
instrument, deed or lease to which the Company or any Subsidiary is a party
or by which it is bound, or of the Charter or By-laws of the Company or any
Subsidiary;
(2) the violation of any law, judgment, decree or governmental order,
rule or regulation applicable to the Company or any Subsidiary;
(3) the creation under any agreement, instrument, deed or lease of any
Lien upon any of the assets of the Company or any Subsidiary; or
(4) any redemption, retirement or other repurchase obligation of the
Company or any Subsidiary under any Charter, By-law, agreement, instrument,
deed or lease.
-4-
<PAGE> 5
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made by the Company or any Subsidiary in connection with the
execution, delivery and performance of this Agreement or the performance of the
Amended Credit Agreement, or the consummation of the transactions contemplated
hereby or thereby.
4. NO DEFAULT. Immediately before and after giving effect to the amendments
set forth in Section 2, no Default will exist.
5. INCORPORATION OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in Section 8 of the Credit Agreement are true and correct
on the date hereof as if originally made on and as of the date hereof (except to
the extent any representation or warranty refers to a specific earlier date).
4. CONDITIONS. The effectiveness of this Agreement shall be subject to the
satisfaction of the following conditions:
1. PAYMENT OF FEES. The Company shall have paid all outstanding fees
related to the Credit Agreement.
2. OFFICER'S CERTIFICATE. The representations and warranties contained in
Section 3 shall be true and correct as of the Amendment Date with the same force
and effect as though originally made on and as of such date; no Default shall
exist on the Amendment Date prior to or immediately after giving effect to this
Agreement; as of the Amendment Date, no Material Adverse Change shall have
occurred; and the Company shall have furnished to the Agent on the Amendment
Date a certificate to these effects, in substantially the form of Exhibit 4(b),
signed by an Executive Officer or a Financial Officer.
3. LEGAL OPINION. On the Amendment Date, the Lenders shall have received
from Hale and Dorr LLP, special counsel to the Company, hereby authorized and
directed by the Company, its opinion with respect to this Agreement, the Amended
Credit Agreement and the transactions contemplated hereby and thereby, which
opinion shall be in form and substance satisfactory to the Agent.
4. PROPER PROCEEDINGS. All proper corporate proceedings shall have been
taken by each of the Company and the Subsidiaries to authorize this Agreement,
the Amended Credit Agreement and the transactions contemplated hereby and
thereby. The Agent shall have received copies of all documents, including legal
opinions of counsel and records of corporate proceedings which the Agent may
have requested in connection therewith, such documents, where appropriate, to be
certified by proper corporate or governmental authorities.
5. EXECUTION BY LENDERS. Each of the Lenders shall have executed and
delivered this Agreement to the Company.
-5-
<PAGE> 6
5. FURTHER ASSURANCES. Each of the Company and the Subsidiaries will, promptly
upon request of the Agent from time to time, execute, acknowledge and deliver,
and file and record, all such instruments and notices, and take all such action,
as the Agent deems necessary or advisable to carry out the intent and purposes
of this Agreement.
6. GENERAL. The Amended Credit Agreement and all of the other Credit Documents
are each confirmed as being in full force and effect. This Agreement, the
Amended Credit Agreement and the other Credit Documents referred to herein or
therein constitute the entire understanding of the parties with respect to the
subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral, with respect to such
subject matter. The invalidity or unenforceability of any provision hereof shall
not affect the validity or enforceability of any other term or provision hereof.
The headings in this Agreement are for convenience of reference only and shall
not alter, limit or otherwise affect the meaning hereof. Each of this Agreement
and the Amended Credit Agreement is a Credit Document and may be executed in any
number of counterparts, which together shall constitute one instrument, and
shall bind and inure to the benefit of the parties and their respective
successors and assigns, including as such successors and assigns all holders of
any Note. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS (OTHER THAN THE CONFLICT OF LAWS RULES) OF THE COMMONWEALTH OF
MASSACHUSETTS.
-6-
<PAGE> 7
Each of the undersigned has caused this Agreement to be executed and delivered
by its duly authorized officer as an agreement under seal as of the date first
above written.
THE PIONEER GROUP, INC. PIONEERING SERVICES CORP.
By /s/ William H. Keogh By /s/ William H. Keogh
--------------------- ---------------------
Title: Treasurer Title: Treasurer
60 State Street 60 State Street
Boston, Massachusetts 02109-1820 Boston, Massachusetts 02109-1820
PIONEERING MANAGEMENT
CORPORATION
By /s/ William H. Keogh
---------------------
Title: Treasurer
60 State Street
Boston, Massachusetts 02109-1820
PIONEER MANAGEMENT (IRELAND) LTD.
By /s/ John F. Cogan, Jr.
-----------------------
Title: Director
60 State Street
Boston, Massachusetts 02109-1820
PIONEER FUNDS DISTRIBUTOR, INC.
By /s/ William H. Keogh
---------------------
Title: Treasurer
60 State Street
Boston, Massachusetts 02109-1820
-7-
<PAGE> 8
BANKBOSTON, N.A.
By /s/ Karen A. Gallagher
----------------------
Title: Vice President
Financial Institutions Division
100 Federal Street - 15th Floor
Boston, Massachusetts 02110
Telecopy: (617) 434-1537
Telex: 940581
THE BANK OF NEW YORK
By /s/ Scott H. Buitekant
----------------------
Title: Assistant Vice President
One Wall Street, 17th Floor
Mutual Funds Banking Division
New York, NY 10286
Telecopy: (212) 635-6348
Telex:
SOCIETE GENERALE
By /s/ Woddy Littlefield
---------------------
Title: Vice President
1221 Avenue of the Americas
New York, New York 10020
Telecopy: (212) 278-7153
-8-
<PAGE> 9
STATE STREET BANK & TRUST COMPANY
By:/s/ Peter M. Sherwood
---------------------
Title: Vice President
225 Franklin Street, 8th Floor
Asset-Based Finance
Boston, MA 02110
Telecopy: (617) 338-4041
BANQUE NATIONALE DE PARIS
By:/s/ Frances Tenney /s/ Barry S. Feigenbaum
------------------ -----------------------
Title: Vice President Senior Vice President
499 Park Avenue, 7th Floor
New York, 10022
Telecopy: (212) 415-9707
MELLON BANK, N.A.
By:/s/ Susan M. Whitewood
----------------------
Title: Vice President
One Mellon Bank Center
Mail Code: 1510370
Pittsburgh, PA 15258
Telecopy: (412) 234-8087
-9-
<PAGE> 10
EXHIBIT 4(b)
OFFICER'S CERTIFICATE
Pursuant to Section 4(b) of Amendment No. 5 to Credit Agreement dated as of
July 21, 1998 (the "Amendment") among The Pioneer Group, Inc., a Delaware
corporation (the "Company"), certain of its subsidiaries signatories thereto,
the Lenders and BankBoston, N.A., f/k/a The First National Bank of Boston, as
agent (the "Agent") for itself and the other Lenders, which amends the Credit
Agreement dated as of June 6, 1996 (as amended, modified and in effect prior to
giving effect to the Amendment, the "Credit Agreement"), among the Company,
certain of its subsidiaries signatories thereto, the Lenders and the Agent, the
Company hereby certifies that the representations and warranties contained in
Section 3 of the Amendment are true and correct on and as of the Amendment Date
with the same force and effect as though originally made on and as of the
Amendment Date; no Default exists on the Amendment Date or will exist
immediately after giving effect to the Amendment; and as of the Amendment Date,
no Material Adverse Change has occurred.
Terms defined in the Amendment and not otherwise defined herein are used
herein with the meanings so defined.
This certificate has been executed by a duly authorized Executive Officer
or Financial Officer this ____ day of July, 1998.
THE PIONEER GROUP, INC.
By /s/ William H. Keough
----------------------
Name: William H. Keough
Title: Treasurer
-10-
<PAGE> 11
EXHIBIT 9.1.2
OFFICERS OF THE COMPANY
1. John F. Cogan, Jr. Chairman of the Board, Chief Executive Officer and
President of the Company
2. William H. Keough Senior Vice President, Chief Financial Officer and
Treasurer of the Company and Subsidiaries
3. David D. Tripple President and Chief Investment Officer of Pioneering
Management Corporation
4. William H. Smith, Jr. President and Director of Pioneering Services
Corporation
5. Roger K. Leonard Managing Director and Chief Executive of Pioneer
Goldfields Limited and Managing Director of
Teberebie Goldfields Limited
6. Robert L. Butler President of Pioneer Funds Distributor, Inc.
-11-
<PAGE> 1
EXHIBIT-10.2
THE PIONEER GROUP, INC.
CREDIT AGREEMENT
Amendment No. 6
This Agreement, dated as of September 30, 1998, is among The Pioneer Group,
Inc., a Delaware corporation (the "Company"), certain of its subsidiaries listed
on the signature pages hereto, the Lenders (as defined in the Credit Agreement
referenced below) and BankBoston, N.A., f/k/a The First National Bank of Boston,
as agent (the "Agent") for itself and the other Lenders. The parties agree as
follows:
1. REFERENCE TO CREDIT AGREEMENT; DEFINITIONS. Reference is made to the Credit
Agreement dated as of June 6, 1996, among the Company, certain of its
subsidiaries, the Lenders and the Agent (as amended, modified and in effect
prior to giving effect to this Agreement, the "Credit Agreement"). Terms defined
in the Credit Agreement as amended hereby (the "Amended Credit Agreement") and
not otherwise defined herein are used herein with the meanings so defined.
Except as the context otherwise explicitly requires, the capitalized terms
"Section" and "Exhibit" refer to sections hereof and exhibits hereto.
2. AMENDMENTS TO CREDIT AGREEMENT. Subject to all of the terms and conditions
hereof and in reliance upon the representations and warranties set forth in
Section 3, the Credit Agreement is amended as follows, effective upon the date
(the "Amendment Date") that the conditions specified in Section 4 are satisfied,
which conditions must be satisfied no later than September 30, 1998 or this
Agreement shall be of no force or effect:
1. ADDITION OF SECTION 1.13A. A new Section 1.13A is added to the Credit
Agreement immediately after Section 1.13 of the Credit Agreement to read in its
entirety as follows:
"1.13A "B SHARE PURCHASE DOCUMENTS" means, collectively, the (a)
Pioneer Program Master Agreement, dated as of September 30, 1998, by and
among the Company, Pioneering Management Corporation (the "Advisor"),
Pioneer Funds Distributor, Inc. (the "Distributor"), PLT Finance, L.P. (the
"Purchaser"), Putnam, Lovell, de Guardiola & Thornton Inc. (the "Program
Administrator") and Bankers Trust Company as collection agent (the
"Collection Agent"); (b) the Pioneer Program Purchase Agreement, dated as
of September 30, 1998, by and between the Distributor and the Purchaser;
(c) the Pioneer Program Funding and Collection Agency Agreement, dated as
of September 30, 1998, by and among the Collection Agent, the Purchaser,
the Program Administrator and the Distributor; (d) the Pioneer Program
Servicer Agent Agreement, dated as of September 30, 1998, by and among the
Purchaser, the Program Administrator and the Distributor as program
servicer agent; and all other instruments, documents and agreements
executed by the Company or its
<PAGE> 2
Subsidiaries in connection with the
foregoing, to be entered into for the purpose of generating net proceeds
sufficient to prepay all of the Credit Obligations with respect to the B
Share Term Loan."
2. AMENDMENT OF SECTION 1.113A. A new Section 1.113A is added to the Credit
Agreement immediately after Section 1.113 of the Credit Agreement to read in its
entirety as follows:
"1.113A. "PORTFOLIO ASSETS" means with respect to each applicable
Fund, all of the rights under the related Distribution Agreement, the
related Distribution Plan and the related prospectus to receive amounts
paid or payable in respect of Distribution Fees (including interest) and
Contingent Deferred Sales Charges, in each case in respect of the B Shares
of such Fund and in respect of B Shares of any other Fund acquired in any
permitted free exchange of B Shares of the Fund in question, including any
similar amount paid or payable under any replacement distribution plan,
distribution agreement or prospectus, and any continuation payments in
respect thereof paid or payable by the related Trust in respect of the B
Shares of such Fund in the event of a termination of the related
Distribution Plan, Distribution Agreement or prospectus."
3. AMENDMENT OF SECTION 4.3. Section 4.3 of the Credit Agreement is amended
to read in its entirety as follows:
"4.3. MANDATORY PREPAYMENT OF B SHARE TERM LOAN.
4.3.1. Until all of the Credit Obligations with respect to the B
Share Term Loan are paid in full pursuant to Section 4.3.2 and in
addition to any amounts paid in accordance with Section 4.2, the
Borrower Subsidiaries will, as a mandatory prepayment of the B Share
Term Loan, pay to the Agent for the Lenders' accounts on each Payment
Date, commencing on the last Banking Day of the first full calendar
quarter after the B Share Conversion Date, an amount equal to the
greater of (i) 5% of the B Shares Term Loan outstanding on the B Share
Conversion Date or (ii) the B Share Collection Amount for the quarter
ending on such Payment Date; provided that the amount of any such
prepayment shall not exceed the amount of the B Share Term Loan
outstanding at the time of such prepayment.
4.3.2. In addition to any amounts paid in accordance with
Sections 4.2 and 4.3.1, the Borrower Subsidiaries will, as a mandatory
prepayment of the B Share Term Loan, pay to the Agent for the Lenders'
accounts on the earlier of (a) twenty-one Banking Days after the date
of the consummation of the transactions contemplated by the B Share
Purchase Documents or (b) three Banking Days after the receipt by the
Company or any of its Subsidiaries of proceeds from the sale of the
Portfolio Assets permitted in clause (a) of Section
-2-
<PAGE> 3
7.11.6, the full amount of the Credit Obligations with respect to the
B Share Term Loan outstanding as of such date out of the proceeds of
the sale of the Portfolio Assets permitted in clause (a) of Section
7.11.6."
4. AMENDMENT OF SECTION 7.11. Section 7.11 of the Credit Agreement is
amended by adding a new Section 7.11.6 immediately after 7.11.5 of the Credit
Agreement to read in its entirety as follows:
"7.11.6. Pursuant to the B Share Purchase Documents, the Company and
its Subsidiaries may sell, transfer, convey and assign to PLT Finance, L.P.
or its Affiliates the right, title and interest in, to and under all
Portfolio Assets to be conveyed, arising directly and indirectly out of all
applicable B Shares of each applicable Fund, the date of issuance of which
B Shares is (a) before September [30], 1998 or (b) during the period from
the date on which the transactions contemplated by the B Share Purchase
Documents are consummated through the third anniversary of such date;
PROVIDED that immediately before and after giving effect to any such sale,
transfer, conveyance or assignment no Default exists; PROVIDED, FURTHER,
that the proceeds of the sale permitted in clause (a) of this Section
7.11.6 shall be used to prepay the B Share Term Loan as required by Section
4.3.2."
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders to enter into
this Agreement, the Company represents and warrants to each of the Lenders that:
1. LEGAL EXISTENCE, ORGANIZATION. Each of the Company and its Subsidiaries
is duly organized and validly existing and in good standing under the laws of
the jurisdiction of its incorporation, with all power and authority, corporate
or otherwise, necessary to (i) enter into and perform this Agreement, the
Amended Credit Agreement and each other Credit Document to which it is party and
(ii) own its properties and carry on the business now conducted or proposed to
be conducted by it. Each of the Company and its Subsidiaries has taken, or shall
have taken on or prior to the Amendment Date, all corporate or other action
required to make the provisions of this Agreement, the Amended Credit Agreement
and each other Credit Document to which it is party the valid and enforceable
obligations they purport to be.
2. ENFORCEABILITY. The Company and each of its Subsidiaries which are
signatories hereto have duly executed and delivered this Agreement. Each of this
Agreement and the Amended Credit Agreement is the legal, valid and binding
obligation of the Company and such Subsidiaries and is enforceable in accordance
with its terms.
3. NO LEGAL OBSTACLE TO AGREEMENTS. Neither the execution, delivery or
performance of this Agreement, nor the performance of the Amended Credit
Agreement, nor the consummation of any other transaction referred to in or
contemplated by this Agreement,
-3-
<PAGE> 4
nor the fulfillment of the terms hereof or thereof, has constituted or resulted
in or will constitute or result in:
(1) any breach or termination of the provisions of any agreement,
instrument, deed or lease to which the Company or any Subsidiary is a party
or by which it is bound, or of the Charter or Bylaws of the Company or any
Subsidiary;
(2) the violation of any law, judgment, decree or governmental order,
rule or regulation applicable to the Company or any Subsidiary;
(3) the creation under any agreement, instrument, deed or lease of any
Lien upon any of the assets of the Company or any Subsidiary; or
(4) any redemption, retirement or other repurchase obligation of the
Company or any Subsidiary under any Charter, By-law, agreement, instrument,
deed or lease.
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made by the Company or any Subsidiary in connection with the
execution, delivery and performance of this Agreement or the performance of the
Amended Credit Agreement, or the consummation of the transactions contemplated
hereby or thereby.
4. NO DEFAULT. Immediately before and after giving effect to the amendments
set forth in Section 2, no Default will exist.
5. INCORPORATION OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties set forth in Section 8 of the Credit Agreement are true and correct
on the date hereof as if originally made on and as of the date hereof (except to
the extent any representation or warranty refers to a specific earlier date).
4. CONDITIONS. The effectiveness of this Agreement shall be subject to the
satisfaction of the following conditions:
1. OFFICER'S CERTIFICATE. The representations and warranties contained in
Section 3 shall be true and correct as of the Amendment Date with the same force
and effect as though originally made on and as of such date; no Default shall
exist on the Amendment Date prior to or immediately after giving effect to this
Agreement; as of the Amendment Date, no Material Adverse Change shall have
occurred; and the Company shall have furnished to the Agent on the Amendment
Date a certificate to these effects, in substantially the form of Exhibit 4(a),
signed by an Executive Officer or a Financial Officer.
-4-
<PAGE> 5
2. PAYMENT OF LEGAL FEES. The Borrower shall have paid the reasonable fees
and disbursements of Ropes & Gray, special counsel to the Lenders, outstanding
as of the Amendment Date.
3. PROPER PROCEEDINGS. All proper corporate proceedings shall have been
taken by each of the Company and the Subsidiaries to authorize this Agreement,
the Amended Credit Agreement and the transactions contemplated hereby and
thereby. The Agent shall have received copies of all documents, including legal
opinions of counsel and records of corporate proceedings which the Agent may
have requested in connection therewith, such documents, where appropriate, to be
certified by proper corporate or governmental authorities.
4. EXECUTION BY LENDERS. Each of the Lenders shall have executed and
delivered this Agreement to the Company.
5. FURTHER ASSURANCES. Each of the Company and the Subsidiaries will, promptly
upon request of the Agent from time to time, execute, acknowledge and deliver,
and file and record, all such instruments and notices, and take all such action,
as the Agent deems necessary or advisable to carry out the intent and purposes
of this Agreement.
6. GENERAL. The Amended Credit Agreement and all of the other Credit Documents
are each confirmed as being in full force and effect. This Agreement, the
Amended Credit Agreement and the other Credit Documents referred to herein or
therein constitute the entire understanding of the parties with respect to the
subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral, with respect to such
subject matter. The invalidity or unenforceability of any provision hereof shall
not affect the validity or enforceability of any other term or provision hereof.
The headings in this Agreement are for convenience of reference only and shall
not alter, limit or otherwise affect the meaning hereof. Each of this Agreement
and the Amended Credit Agreement is a Credit Document and may be executed in any
number of counterparts, which together shall constitute one instrument, and
shall bind and inure to the benefit of the parties and their respective
successors and assigns, including as such successors and assigns all holders of
any Note. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS (OTHER THAN THE CONFLICT OF LAWS RULES) OF THE COMMONWEALTH OF
MASSACHUSETTS.
-5-
<PAGE> 6
Each of the undersigned has caused this Agreement to be executed and delivered
by its duly authorized officer as an agreement under seal as of the date first
above written.
THE PIONEER GROUP, INC. PIONEERING SERVICES CORPORATION
By /s/ William H. Keough By /s/ William H. Keough
---------------------- ----------------------
Title: Treasurer Title: Treasurer
60 State Street 60 State Street
Boston, Massachusetts 02109-1820 Boston, Massachusetts 02109-1820
PIONEERING MANAGEMENT
CORPORATION
By /s/ William H. Keough
----------------------
Title: Treasurer
60 State Street
Boston, Massachusetts 02109-1820
PIONEER MANAGEMENT (IRELAND)
LTD.
By John F. Cogan, Jr.
------------------
Title: Director
60 State Street
Boston, Massachusetts 02109-1820
PIONEER FUNDS DISTRIBUTOR, INC.
By /s/ William H. Keough
----------------------
Title: Treasurer
60 State Street
Boston, Massachusetts 02109-1820
-6-
<PAGE> 7
BANKBOSTON, N.A.
By /s/ Stewart P. Neff
--------------------
Title: Managing Director
Financial Institutions Division
100 Federal Street - 15th Floor
Boston, Massachusetts 02110
Telecopy: (617) 434-1537
Telex: 940581
THE BANK OF NEW YORK
By Jean A. Mahony
-----------------
Title: Asst. Vice President
One Wall Street, 17th Floor
Mutual Fund Banking Division
New York, NY 10286
Telecopy: (212) 635-6348
Telex:
SOCIETE GENERALE
By /s/ Woody Littlefield
----------------------
Title: Vice President
1221 Avenue of the Americas
New York, New York 10020
Telecopy: (212) 278-7153
-7-
<PAGE> 8
STATE STREET BANK & TRUST COMPANY
By: /s/ Michael St. Jean
---------------------
Title: Vice President
225 Franklin Street, 8th Floor
Asset-Based Finance
Boston, MA 02110
Telecopy: (617) 338-4041
BANQUE NATIONALE DE PARIS
By: /s/ Laurent Vanderzyppe Marguerite L. Lebon
------------------------ -------------------
Title: Vice President Asst. Vice President
499 Park Avenue, 2nd Floor
New York, 10022
Telecopy: (212) 415-9707
MELLON BANK, N.A.
By: John Cooper
-------------
Title: Vice President
One Mellon Bank Center
Mail Code: 1510370
Pittsburgh, PA 15258
Telecopy: (412) 234-8087
-8-
<PAGE> 9
EXHIBIT 4(a)
OFFICER'S CERTIFICATE
Pursuant to Section 4(a) of Amendment No. 6 to Credit Agreement dated as of
September 30, 1998 (the "Amendment") among The Pioneer Group, Inc., a Delaware
corporation (the "Company"), certain of its subsidiaries signatories thereto,
the Lenders and BankBoston, N.A., f/k/a The First National Bank of Boston, as
agent (the "Agent") for itself and the other Lenders, which amends the Credit
Agreement dated as of June 6, 1996 (as amended, modified and in effect prior to
giving effect to the Amendment, the "Credit Agreement"), among the Company,
certain of its subsidiaries signatories thereto, the Lenders and the Agent, the
Company hereby certifies that the representations and warranties contained in
Section 3 of the Amendment are true and correct on and as of the Amendment Date
with the same force and effect as though originally made on and as of the
Amendment Date; no Default exists on the Amendment Date or will exist
immediately after giving effect to the Amendment; and as of the Amendment Date,
no Material Adverse Change has occurred.
Terms defined in the Amendment and not otherwise defined herein are used
herein with the meanings so defined.
This certificate has been executed by a duly authorized Executive Officer
or Financial Officer this 30th day of September, 1998.
THE PIONEER GROUP, INC.
By /s/ William H. Keough
----------------------
Name: William H. Keough
Title: Treasurer
<PAGE> 1
EXHIBIT 10.3
================================================================================
THE PIONEER GROUP, INC.
------------------------
SUPPLEMENTAL AGREEMENT NO. 1
Dated as of September 30, 1998
amending the
Note Agreement dated as of August 14, 1997
------------------------
Senior Notes due 2004
================================================================================
<PAGE> 2
THE PIONEER GROUP, INC.
SUPPLEMENTAL AGREEMENT NO. 1
as of September 30, 1998
Re: Senior Notes due 2004
TO The Travelers Insurance Company
One Tower Square
Hartford, CT 06183-2030
Ladies and Gentlemen:
THE PIONEER GROUP, INC., a Delaware corporation (the "COMPANY"), hereby
agrees with you as follows:
Section 1. AMENDMENTS. Pursuant to the Note Agreement dated as of August
14, 1997 (the "ORIGINAL NOTE AGREEMENT") entered into by the Company with The
Travelers Insurance Company, the Company issued and sold $20,000,000 aggregate
principal amount of its 7.95% Senior Notes due 2004 (the "NOTES"). Unless the
context otherwise requires, capitalized terms used herein without definition
have the respective meanings ascribed thereto in the Original Note Agreement.
The Company has requested you, as the holder of all of the outstanding Notes, to
amend the Original Note Agreement. Subject to this Supplemental Agreement No. 1
becoming effective as hereinafter provided, the Company and the holder of the
Notes do hereby agree that the Original Note Agreement is amended pursuant to
Section 11.1 thereof as follows:
(1) Section 1 is amended by adding the following new definitions in
proper alphabetical order therein:
"ADJUSTED COMPANY TOTAL DEBT" means, at any date, Company Total Debt PLUS
the B Share Loan."
"APPLICABLE MARGIN" means, with respect to the unpaid principal amount of
any Note as of any date:
<PAGE> 3
(a) on or after the Effective Date but prior to the first anniversary
of the Effective Date:
(i) on any date on which the ratio of Adjusted Company Total Debt
to Combined Adjusted Mutual Fund Cash Flow is less than or equal to
2.0, 0.25%;
(ii) on any date on which the ratio of Adjusted Company Total
Debt to Combined Adjusted Mutual Fund Cash Flow is greater than 2.0
but less than or equal to 2.5, 0.50%; and
(iii) on any date on which the ratio of Adjusted Company Total
Debt to Combined Adjusted Mutual Fund Cash Flow is greater than 2.5,
0.75%; and
(b) on and after the first anniversary of the Effective Date:
(i) on any date on which the ratio of Adjusted Company Total Debt
to Combined Adjusted Mutual Fund Cash Flow is less than or equal to
1.0, 0%;
(ii) on any date on which the ratio of Adjusted Company Total
Debt to Combined Mutual Fund Cash Flow is greater than 1.0 but less
than or equal to 2.0, 0.25%; and
(iii) on any date on which the ratio of Adjusted Company Total
Debt to Combined Adjusted Mutual Fund Cash Flow is greater than 2.0
but less than or equal to 2.5, 0.50%; and
(iv) on any date on which Adjusted Company Total Debt to Combined
Adjusted Mutual Fund Cash Flow is greater than 2.5, 0.75%.
For purposes of calculating the Applicable Margin, (1) Adjusted
Company Total Debt shall be determined as of the last day of the most
recently ended fiscal quarter for which financial statements have been
furnished (or are required to have been furnished) by the Company to the
holders of Notes
-2-
<PAGE> 4
pursuant to Sections 7.4.1 or 7.4.2 and (2) Combined Adjusted Mutual Fund
Cash Flow shall be determined for the period of four consecutive fiscal
quarters of the Company then ended. Any adjustment in the Applicable Margin
shall take effect upon the earlier of (i) the date upon which the financial
statements referred to in the foregoing sentence are furnished or (ii) the
date such financial statements are required to be furnished by the Company.
If for any reason the Company shall not have furnished the financial
statements required by Sections 7.4.1 or 7.4.2 upon the expiration of the
period specified in Section 9.1.2, then the Applicable Margin shall be
deemed to be the highest margin provided herein."
"APPLICABLE RATE" means, at any date, the Base Rate plus the Applicable
Margin, if any, unless the Default Rate is applicable,
in which case the Applicable Rate shall be the Default Rate plus the Applicable
Margin applicable at such time.
"BASE RATE" means 7.95% per annum.
"COMBINED ADJUSTED MUTUAL FUND CASH FLOW" means, for any period, Combined
Mutual Fund Cash Flow plus Distribution Fees."
"EFFECTIVE DATE" shall have the meaning assigned such term in Supplemental
Agreement No. 1.
(2) Section 4.6 is amended by changing the definition of Remaining
Scheduled Payments to read as follows:
"REMAINING SCHEDULED PAYMENTS" means, with respect to the Called Principal
of any Note, all payments of such Called Principal and interest thereon that
would be due after the Settlement Date with respect to such Called Principal if
no payment of such Called Principal were made prior to its scheduled due date
(determined for such purpose at the Base Rate only), provided that if such
Settlement Date is not a date on which interest payments are due to be made
under the terms of the Notes, then the amount of the next succeeding scheduled
interest payment will be reduced by the amount of interest accrued to such
Settlement Date and required to be paid on such Settlement Date pursuant to
Section 4.1.
-3-
<PAGE> 5
(3) Sections 7.19 and 7.20 shall be added after Section 7.18 of the
Original Note Agreement to read as follows:
"Section 7.19. YEAR 2000.
The material hardware and software systems of the Company and its
Subsidiaries include design, performance and functionality so that the Company
and its Subsidiaries do not reasonably expect to experience invalid or incorrect
results or abnormal hardware or software operations related to calendar year
2000, except such results or abnormal operations that would not cause a Material
Adverse Change to the Company or its Subsidiaries. To the best of the Company's
knowledge, after due diligence and inquiry, the material hardware and software
systems of the Company and its Subsidiaries include calendar year 2000 date
conversion and compatibility capabilities, including, but not limited to, date
data century recognition, same century and multiple century formula and date
value calculations, and user interface date data values that reflect the
century.
"Section 7.20. UPSTREAM PAYMENTS.
As indicated on page thirty-three of the Pioneer Bank Syndicate
Presentation dated June 30, 1998, the Company will cause the following to occur
by December 31, 1998: (a) Pioneer Capital Corporation will pay $10 million to
the Company and (b) Pioneer Funds Distributor, Inc. will pay $8 million to the
Company."
Section 2. BANK CREDIT FACILITY.
A. The Company acknowledges that the Required Holders must approve of any
refinancing, amendment, modification or supplementing of the B Share Loans under
the Bank Credit Facility or of any alternative method of financing the B Shares
which approval will not be unreasonably withheld.
B. You hereby consent to the entering into of Amendment No. 5 to the Bank
Credit Facility, dated as of July 21, 1998, among the Company, certain of its
Subsidiaries, the Lenders (as defined in the Bank Credit Facility) and
BankBoston, N.A., as Agent, substantially in the form of the document heretofore
furnished to you.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you as follows:
-4-
<PAGE> 6
A. ORGANIZATION, AUTHORIZATION, ETC. The Company and each of its
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the State of its organization, and has all requisite
power and authority to execute, deliver and perform its obligations under this
Supplemental Agreement No. 1.
The execution, delivery and performance of this Supplemental Agreement No.
1 has been duly authorized by all necessary corporate and, if required,
stockholder action on the part of the Company and each Subsidiary Guarantor, as
applicable. This Supplemental Agreement No. 1 is the legal, valid and binding
obligation of the Company and the Subsidiary Guarantors, as applicable,
enforceable against the Company or such Subsidiary Guarantors in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws relating
to or affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
B. COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The execution, delivery
and performance by the Company or the Subsidiary Guarantors of this Supplemental
Agreement No. 1 does not and will not (A) contravene, result in any breach of,
or constitute a default under, or result in the creation of any Lien in respect
of any property of the Company or any Subsidiary under any indenture, mortgage,
deed of trust, loan, purchase or credit agreement, lease, corporate charter or
by-laws, or any other agreement or instrument to which the Company or any
Subsidiary is bound or by which the Company or any Subsidiary or any of their
respective properties may be bound or affected, (B) conflict with or result in a
breach of any of the terms, conditions or provisions of any order, judgment,
decree, or ruling of any court, arbitrator or Governmental Authority applicable
to the Company or any Subsidiary or (C) violate any provision of any statute or
other rule or regulation of any Governmental Authority applicable to the Company
or any Subsidiary.
C. GOVERNMENTAL AUTHORIZATIONS, ETC. No consent, approval or authorization
of, or registration, filing or declaration with, any Governmental Authority is
required in connection with the execution, delivery or performance by the
Company or any Subsidiary Guarantor of this Supplemental Agreement No. 1.
-5-
<PAGE> 7
D. NO DEFAULT, ETC. No Event of Default or Default has occurred and is
continuing, and neither the Company nor any Core Mutual Fund Subsidiary is in
default (whether or not waived) in the performance or observance of any of the
terms, covenants or conditions contained in any instrument evidencing any
Indebtedness and there is no pending request by the Company (except pursuant to
this Supplemental Agreement No. 1) or any such Subsidiary for any amendment or
waiver in respect of any contemplated or possible default with respect to such
Indebtedness and no event has occurred and is continuing which, with notice or
lapse of time or both, would become such a default.
Section 4. REPRESENTATION OF THE NOTEHOLDER. You represent to the Company
that you are the beneficial owner of the Notes in an aggregate principal amount
of $20,000,000.
Section 5. EFFECTIVENESS OF THIS SUPPLEMENTAL AGREEMENT NO. 1. This
Supplemental Agreement No. 1 will become effective on the date (the "EFFECTIVE
DATE") on which all of the following conditions precedent shall have been
satisfied:
A. PROCEEDINGS. All proceedings taken by the Company and the Subsidiary
Guarantors in connection with the transactions contemplated hereby and all
documents and papers incident thereto shall be satisfactory to you, and you and
your special counsel shall have received all such counterpart originals or
certified or other copies of such documents and papers, all in form and
substance satisfactory to you, as you or they may reasonably request in
connection therewith.
B. OPINION OF COUNSEL FOR THE COMPANY. On the Effective Date, the holders
of the Notes shall have received from Hale and Dorr LLP, special counsel to the
Company, hereby authorized and directed by the Company, its opinion with respect
to this Supplemental Agreement No. 1, the Original Note Agreement, as amended
hereby, and the transactions contemplated hereby and thereby; which opinion
shall be in form and substance satisfactory to such holders.
C. REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Company contained in Section 3 of this Supplemental Agreement No. 1 shall be
true on and as of the Effective Date as though such representations and
warranties had been made on and as of the Effective Date, and you
-6-
<PAGE> 8
shall have received a certificate of a senior financial officer of the Company,
dated the Effective Date, to such effect.
D. PAYMENT OF FEES. The Company shall have paid the fees and disbursements
of your special counsel as contemplated by Section 5 of this Supplemental
Agreement No. 1. The Company shall have paid for the account of The Travelers
Insurance Company a fee of $25,000.
Section 6. EXCHANGE OR NOTATION OF NOTES. Prior to the transfer effected on
or after the Effective Date of any Note outstanding on such date, the holder
thereof shall endorse such Note appropriately in order to indicate that all
amounts owing under such Note shall, from and after the Effective Date, bear
interest at the Base Rate plus the Applicable Margin in effect from time to
time. Each new Note issued thereafter in substitution or exchange for an
outstanding Note shall be in the form of Exhibit A hereto, which form of Note
shall replace Exhibit 2.1 to the Original Note Agreement.
Section 7. EXPENSES. Without limiting the generality of Section 5.8 of the
Original Note Agreement, the Company agrees, whether or not the transactions
contemplated hereby are consummated, to pay the reasonable fees and
disbursements of Willkie Farr & Gallagher, your special counsel, for their
services rendered in connection with such transactions and with respect to this
Supplemental Agreement No. 1 and any other document delivered pursuant to this
Supplemental Agreement No. 1 and reimburse you for your out-of-pocket expenses
in connection with the foregoing.
Section 8. RATIFICATION. Except as amended hereby, the Original Note
Agreement is in all respects ratified and confirmed and the provisions thereof
shall remain in full force and effect, and the Subsidiary Guarantors hereby
ratify their obligations thereunder and under the Subsidiary Guarantees to which
they are a party.
Section 9. COUNTERPARTS. This Supplemental Agreement No. 1 may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
Section 10. GOVERNING LAW. This Supplemental Agreement No. 1 shall be
governed by and construed in accordance with the laws of the State of New York.
-7-
<PAGE> 9
If you are in agreement with the foregoing, please sign the form of
acceptance in the space below provided, whereupon this Supplemental Agreement
No. 1 shall become a binding agreement between you and the Company, with the
approval of the Subsidiary Guarantors, subject to becoming effective as
hereinabove provided.
THE PIONEER GROUP, INC.
By /s/ Frank M. Polestra
----------------------
Title: Vice President
60 State Street
Boston, MA 02109-1820
SUBSIDIARY GUARANTORS
PIONEERING MANAGEMENT CORPORATION
By /s/ Theresa M. Hamacher
-------------------------
Title: Senior Vice President
60 State Street
Boston, MA 02109-1820
PIONEER MANAGEMENT (IRELAND) LTD.
By /s/ John F. Lawlor
-------------------
Title: Director
60 State Street
Boston, MA 02109-1820
PIONEERING SERVICES CORP.
By /s/ Robert B. Rainville
------------------------
Title: President
60 State Street
Boston, MA 02109-1820
ACCEPTED
THE TRAVELERS INSURANCE COMPANY
By /s/ Pamela Westmoreland
------------------------
Title: Investment Officer
<PAGE> 1
EXHIBIT - 10.4
THE PIONEER GROUP, INC.
SUPPLEMENTAL AGREEMENT NO. 2
As of September 30, 1998
Re: 7.95% Senior Notes due 2004
To: The Travelers Insurance Company
One Tower Square
Hartford, CT 06183-2030
Ladies and Gentlemen:
THE PIONEER GROUP, INC., a Delaware corporation (the "Company"), hereby
agrees with you as follows:
Section 1. AMENDMENTS. Pursuant to the Note Agreement dated as of August
14, 1997 (as amended, modified and in effect prior to giving effect to this
Agreement, the "ORIGINAL NOTE AGREEMENT") entered into by the Company with The
Travelers Insurance Company, the Company issued and sold $20,000,000 aggregate
principal amount of its 7.95% Senior Notes due 2004 (the "NOTES"). Unless the
context otherwise requires, capitalized terms used herein without definition
have the respective meanings ascribed thereto in the Original Note Agreement.
The Company has requested you, as the holder of all the outstanding Notes, to
amend the Original Note Agreement. Subject to this Supplemental Agreement No. 2
becoming effective as hereinafter provided, the Company and the holder of the
Notes do hereby agree that the Original Note Agreement is amended pursuant to
Section 11.1 thereof as follows:
(a) Section 1 is amended by adding the following new definitions in proper
alphabetical order therein:
""B SHARE PURCHASE DOCUMENTS" means, collectively, the (a) Pioneer
Program Master Agreement, dated as of September 30, 1998, by and among the
Company, Pioneering Management Corporation (the "Advisor"), Pioneer Funds
Distributor, Inc. (the "Distributor"), PLT Finance, L.P. (the "Purchaser"),
Putnam, Lovell, de Guardiola & Thornton Inc. (the "Program Administrator")
and Bankers Trust Company as collection agent (the "Collection Agent"); (b)
the Pioneer Program Purchase Agreement, dated as of September 30, 1998, by
and between the Distributor and the Purchaser; (c) the Pioneer Program
Funding and Collection Agency Agreement, dated as of September 30, 1998, by
and among the Collection Agent, the Purchaser, the Program Administrator
and the Distributor; (d) the Pioneer Program Servicer Agent Agreement,
dated as of September 30, 1998, by and among the Purchaser, the Program
Administrator and the Distributor as program servicer agent; and all other
instruments, documents and agreements executed by the Company or its
Subsidiaries in connection with the foregoing, to be entered into for the
purpose of generating net proceeds sufficient to prepay all of the Credit
Obligations with respect to the B Share Term Loan."
<PAGE> 2
""PORTFOLIO ASSETS" means with respect to each applicable Fund, all of
the rights under the related Distribution Agreement, the related
Distribution Plan and the related prospectus to receive amounts paid or
payable in respect of Distribution Fees (including interest) and Contingent
Deferred Sales Charges, in each case in respect of the B Shares of such
Fund and in respect of B Shares of any other Fund acquired in any permitted
free exchange of B Shares of the Fund in question, including any similar
amount paid or payable under any replacement distribution plan,
distribution agreement or prospectus, and any continuation payments in
respect thereof paid or payable by the related Trust in respect of the B
Shares of such Fund in the event of a termination of the related
Distribution Plan, Distribution Agreement or prospectus."
(b) Section 7.11.7 shall be added immediately after Section 7.11.6 of the
Original Note Agreement to read in its entirety as follows:
"Section 7.11.7. Pursuant to the B Share Purchase Documents, the
Company and its Subsidiaries may sell, transfer, convey and assign to PLT
Finance, L.P. or its Affiliates the right, title and interest in, to and
under all Portfolio Assets to be conveyed, arising directly and indirectly
out of all applicable B Shares of each applicable Fund, the date of
issuance of which B Shares is (a) on or before September 30, 1998 or (b)
during the period from the date on which the transactions contemplated by
the B Share Purchase Documents are consummated through the third
anniversary of such date; PROVIDED (i) that immediately before and after
giving effect to any such sale, transfer, conveyance or assignment no
Default exists, (ii) that the proceeds of the sale permitted in clause (a)
of this Section 7.11.7 shall be used to prepay the B Share Term Loan (as
defined in the Bank Credit Facility) as required by Section 4.3.2 of the
Bank Credit Facility and (iii) that any sale permitted under clause (b) of
this Section 7.11.7 shall be made at a purchase price which is equal to or
greater than the amount at which the Portfolio Assets are reflected on the
financial statements of the Company."
Section 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you as follows:
(a) ORGANIZATION, AUTHORIZATION, ETC. The Company and each of its
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the State of its organization, and has all requisite
power and authority to execute, deliver and perform its obligations under this
Supplemental Agreement No. 2. The execution, delivery and performance of this
Supplemental Agreement No. 2 has been duly authorized by all necessary corporate
and, if required, stockholders action on the part of the Company and each
Subsidiary Guarantor, as applicable. This Supplemental Agreement No. 2 is the
legal, valid and binding obligation of the Company and each Subsidiary
Guarantor, as applicable, enforceable against the Company or such Subsidiary
Guarantor in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
2
<PAGE> 3
(b) COMPLIANCE WITH LAWS, OTHER INSTRUMENTS, ETC. The execution, delivery
and performance by the Company or the Subsidiary Guarantors of this Supplemental
Agreement No. 2 does not and will not (1) contravene, result in any breach of,
or constitute a default under, or result in the creation of any Lien in respect
of any property of the Company under any indenture, mortgage, deed of trust,
loan, purchase or credit agreement, lease, corporate charter or by-laws, or any
other agreement or instrument to which the Company or any Subsidiary is bound or
by which the Company or any Subsidiary or any of their respective properties may
be bound or affected, (2) conflict with or result in a breach of any of the
terms, conditions or provisions of any order, judgment, decree, or ruling of any
court, arbitrator or Governmental Authority applicable to the Company or any
Subsidiary or (3) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or any
Subsidiary.
(c) GOVERNMENTAL AUTHORIZATIONS, ETC. No consent, approval or authorization
of, or registration, filing or declaration with, any Governmental Authority is
required in connection with the execution, delivery or performance by the
Company or any Subsidiary Guarantor of this Supplemental Agreement No. 2.
(d) NO DEFAULT, ETC. No Event of Default or Default has occurred and is
continuing and neither the Company nor any Core Mutual Fund Subsidiary is in
default (whether or not waived) in the performance or observance of any of the
terms, covenants or conditions contained in any instrument evidencing any
Indebtedness and there is no pending request by the Company (except pursuant to
this Supplemental Agreement No. 2) or any Core Mutual Fund subsidiary for any
amendment or waiver in respect of any contemplated or possible default with
respect to such Indebtedness and no event has occurred and is continuing which,
with notice or lapse of time or both, would become such a default.
Section 3. REPRESENTATION OF THE NOTEHOLDER. You represent to the Company
that you are the beneficial owner of the Notes in an aggregate principal amount
of $20,000,000.
Section 4. EFFECTIVENESS OF THIS SUPPLEMENTAL AGREEMENT NO. 1. This
Supplemental Agreement No. 1 will become effective on the date (the "EFFECTIVE
DATE") on which all of the following conditions precedent shall have been
satisfied:
(a) PROCEEDINGS. All proceedings taken by the Company and the Subsidiary
Guarantors in connection with the transactions contemplated hereby and all
documents and papers incident thereto shall be satisfactory to you, and you and
your special counsel shall have received all such counterpart originals or
certified or other copies of such documents and papers, all in form and
substance satisfactory to you, as you or they may reasonably request in
connection therewith.
(b) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Company contained in Section 2 of this Supplemental Agreement No. 2 shall be
true on and as of the Effective Date as though such representations and
warranties had been mad on and as of the Effective Date, and you shall have
received a certificate of a senior financial officer of the Company dated the
Effective Date, to such effect.
3
<PAGE> 4
Section 5. EXPENSES. Without limiting the generality of Section 5.8 of the
Original Note Agreement, the Company agrees, whether or not the transactions
contemplated hereby are consummated, to pay the reasonable fees and
disbursements of Willkie Farr & Gallagher, your special counsel, for their
services rendered in connection with such transactions and with respect to this
Supplemental Agreement No. 2 and any other document delivered pursuant to this
Supplemental Agreement No. 2 and to reimburse you for your out-of-pocket
expenses in connection with the foregoing.
Section 6. RATIFICATION. Except as amended hereby, the Original Note
Agreement is in all respects ratified and confirmed and the provisions thereof
shall remain in full force and effect, and the Subsidiary Guarantors hereby
ratify their obligations thereunder and under the Subsidiary Guarantees to which
they are party.
Section 7. COUNTERPARTS. This Supplemental Agreement No. 2 may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
Section 8. GOVERNING LAW. This Supplemental Agreement No. 2 shall be
governed by and construed in accordance with the laws of the State of New York.
4
<PAGE> 5
If you are in agreement with the foregoing, please sign the form of
acceptance in the space provided below, whereupon this Supplemental Agreement
No. 2 shall become a binding agreement between you and the Company, with the
approval of the Subsidiary Guarantors, subject to becoming effective as
hereinabove provided.
COMPANY:
THE PIONEER GROUP, INC.
By: /s/ Frank M. Polestra
----------------------
Title: Vice President
60 State Street
Boston, Massachusetts 02109-1820
GUARANTORS:
PIONEERING MANAGEMENT CORPORATION
By: /s/ Theresa A. Hamacher
------------------------
Title: Senior Vice President
60 State Street
Boston, Massachusetts 02109-1820
PIONEERING MANAGEMENT (IRELAND) LIMITED
By: /s/ John F. Lawlor
-------------------
Title: Director
60 State Street
Boston, Massachusetts 02109-1820
PIONEERING SERVICES CORPORATION
By: /s/ Rober B. Rainville
-----------------------
Title: President
60 State Street
Boston, Massachusetts 02109-1820
PURCHASER:
THE TRAVELERS INSURANCE COMPANY
By: /s/ Pamela Westmoreland
------------------------
Title: Investment Officer
5
<PAGE> 1
EXHIBIT 10.5
================================================================================
PIONEER PROGRAM
MASTER AGREEMENT
Dated as of September 30, 1998
among
THE PIONEER GROUP, INC.,
as Parent,
PIONEERING MANAGEMENT CORPORATION,
as Advisor,
PIONEER FUNDS DISTRIBUTOR, INC.,
as Distributor
and
Program Servicer Agent,
PLT FINANCE, L.P.,
as Purchaser,
PUTNAM, LOVELL, DE GUARDIOLA & THORNTON INC.,
as Program Administrator and
BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Collection Agent,
except as otherwise expressly provided
================================================================================
<PAGE> 2
TABLE OF CONTENTS
Page
----
ARTICLE I RULES OF CONSTRUCTION; DEFINITIONS
1.01. Rules of Construction.................................... 2
1.02. Definitions.............................................. 2
ARTICLE II EXECUTION AND DELIVERY OF PROGRAM DOCUMENTS
2.01. Program Documents; Purchase Date......................... 2
2.02. Execution and Delivery of Purchase Agreement............. 2
2.03. Execution and Delivery of Program
Collection Agency Agreement.............................. 2
2.04. Execution and Delivery of Program Servicer Agent
Agreement................................................ 2
ARTICLE III CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES
PURSUANT TO THE PROGRAM DOCUMENTS
3.01. Conditions to Obligations of the Parties Under the
Program Documents........................................ 2
3.02. Conditions Precedent on the Closing Date................. 3
3.03. Conditions Precedent on the Initial Purchase
Funding Date and each Purchase Date...................... 6
ARTICLE IV REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Advisor,
the Parent and the Distributor........................... 8
4.02. Additional Representations and Warranties of
the Parent............................................... 12
4.03. Additional Representations and Warranties of the
Distributor.............................................. 13
4.04. Additional Representations and Warranties of the
Advisor.................................................. 14
4.05. Representations and Warranties of the Purchaser.......... 15
i
<PAGE> 3
ARTICLE V COVENANTS
5.01. Covenants of the Advisor, the Parent and the
Distributor.............................................. 16
5.02. Additional Covenants of the Parent....................... 20
5.03. Additional Covenants of the Distributor.................. 23
5.04. Additional Covenants of the Advisor...................... 25
5.05. Additional Covenants of the Purchaser and
the Program Administrator................................ 27
ARTICLE VI THE PROGRAM ADMINISTRATOR
6.01. Authorization and Action................................. 27
6.02. Program Administrator Reliance, Etc...................... 27
6.03. Rights of the Program Administrator...................... 28
ARTICLE VII PARENT UNDERTAKINGS
7.01. Undertakings; Payment of Damages......................... 28
7.02. Agreement Not Affected................................... 29
7.03. Waiver of Notice; No Offset; No Subrogation.............. 29
ARTICLE VIII MISCELLANEOUS
8.01. No Waiver; Modifications in Writing...................... 29
8.02. Payment.................................................. 30
8.03. Notices, Etc............................................. 30
8.04. Costs and Expenses; Indemnification...................... 31
8.05. Taxes.................................................... 34
8.06. Execution in Counterparts................................ 36
8.07. Binding Effect; Assignment............................... 36
8.08. Governing Law; Submission to Jurisdiction................ 37
8.09. Severability of Provisions............................... 37
8.10. Confidentiality.......................................... 37
8.11. Intent of Agreement...................................... 38
8.12. Continuing Obligations................................... 38
8.13. Merger................................................... 38
8.14. Further Acts............................................. 38
8.15. Specific Performance; Other Rights and Remedies.......... 39
8.16. No Proceedings........................................... 39
8.17. Additional Companies and Funds........................... 39
ii
<PAGE> 4
SCHEDULES
SCHEDULE I COMPANIES, FUNDS, SHARES AND RELATED MATTERS
SCHEDULE II PROGRAM ALLOCATION PROCEDURES
SCHEDULE III CONTINGENT DEFERRED SALES CHARGE SCHEDULE
SCHEDULE X RULES OF CONSTRUCTION; DEFINITIONS
EXHIBITS
EXHIBIT A FORM OF PURCHASE AGREEMENT
EXHIBIT B FORM OF PROGRAM SERVICER AGENT AGREEMENT
EXHIBIT C FORM OF PROGRAM COLLECTION AGENCY AGREEMENT
EXHIBIT D FORM OF DISTRIBUTION PLAN
EXHIBIT E FORM OF DISTRIBUTOR'S CONTRACT
EXHIBIT F FORM OF IRREVOCABLE PAYMENT INSTRUCTION
EXHIBIT G FORMS OF OPINIONS
EXHIBIT H FORM OF INVESTOR REPORT
EXHIBIT I FORM OF ADDITIONAL ELIGIBLE FUND ADDENDUM
iii
<PAGE> 5
PIONEER PROGRAM
MASTER AGREEMENT
THIS PIONEER PROGRAM MASTER AGREEMENT (this "AGREEMENT"), dated as
of September 30, 1998, among THE PIONEER GROUP, INC., a Delaware corporation
(the "PARENT"), PIONEERING MANAGEMENT CORPORATION, a Delaware corporation (the
"ADVISOR"), PIONEER FUNDS DISTRIBUTOR, INC., a Massachusetts corporation (the
"DISTRIBUTOR"), PLT FINANCE, L.P. (the "PURCHASER"), PUTNAM, LOVELL, DE
GUARDIOLA & THORNTON INC., a Delaware corporation (the "PROGRAM ADMINISTRATOR")
and BANKERS TRUST COMPANY, not in its individual capacity but solely as
Collection Agent except as otherwise expressly provided (the "COLLECTION
AGENT").
W I T N E S S E T H :
WHEREAS, the Parent owns directly or indirectly one hundred percent
(100%) of the capital stock of the Distributor and the Advisor;
WHEREAS, the Distributor is the originator of certain "Portfolio
Assets" (as hereinafter defined);
WHEREAS, the Parent, the Distributor, the Advisor and the Purchaser
wish to establish a program pursuant to which the Purchaser will acquire certain
of the Portfolio Assets in accordance with the terms and conditions set forth
herein and in the other "Program Documents" (as hereinafter defined);
WHEREAS, the Purchaser has appointed the Program Administrator to
administer the Program;
WHEREAS, the Purchaser and the Program Administrator have
appointed the Collection Agent to serve as Collection Agent; and
WHEREAS, the Purchaser and the Program Administrator wish to appoint
the Distributor as Program Servicer Agent in accordance with the terms and
conditions set forth herein and in the other Program Documents;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereto hereby agree as follows:
<PAGE> 6
ARTICLE I
RULES OF CONSTRUCTION;
DEFINITIONS
Section 1.01. RULES OF CONSTRUCTION. The rules of construction set
forth in Schedule X hereto shall be applied to this Agreement.
Section 1.02. DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed thereto in Schedule X
attached hereto and by this reference made a part hereof.
ARTICLE II
EXECUTION AND DELIVERY OF PROGRAM DOCUMENTS
Section 2.01. PROGRAM DOCUMENTS; PURCHASE DATE. Subject to the terms
and conditions of this Agreement and the other Program Documents, on or before
the Closing Date, each of the Parties severally agrees to execute and deliver
the other Program Documents to which it is to be a Party. The Parties also agree
that the events which are to occur on a Purchase Date shall be deemed to occur
simultaneously.
Section 2.02. EXECUTION AND DELIVERY OF PURCHASE AGREEMENT. On the
date hereof, the Distributor and the Purchaser shall have executed and delivered
the Purchase Agreement.
Section 2.03. EXECUTION AND DELIVERY OF PROGRAM COLLECTION AGENCY
AGREEMENT. On the date hereof, the Purchaser, the Program Administrator, the
Distributor and the Collection Agent shall have executed and delivered the
Program Collection Agency Agreement pursuant to which, among other things, the
Collection Agent shall receive Program Collections and Related Collections on
the Portfolio Assets and make distributions in respect thereof.
Section 2.04. EXECUTION AND DELIVERY OF PROGRAM SERVICER AGENT
AGREEMENT. On the date hereof, the Distributor, the Purchaser and the Program
Administrator shall have executed and delivered the Program Servicer Agent
Agreement, pursuant to which the Distributor is appointed Program Servicer
Agent.
ARTICLE III
CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF THE PARTIES PURSUANT TO THE PROGRAM DOCUMENTS
Section 3.01. CONDITIONS TO OBLIGATIONS OF THE PARTIES UNDER THE
PROGRAM DOCUMENTS. The obligation of each Party to take the actions to be taken
by it under the Program Documents on the Purchase Date shall be subject to the
fulfillment or waiver (i) on the Closing Date of the following specified
conditions precedent set forth in Section 3.02 and (ii) on such
2
<PAGE> 7
Purchase Date of the following specified conditions precedent set forth in
Section 3.03 (except that the obligation of any Party shall not be subject to
such Party's own performance or compliance):
(a) in the case of each of the Parent, the Distributor, the Program
Servicer Agent and the Advisor, the fulfillment to its satisfaction, or
waiver by it, of the conditions precedent set forth in clauses (a), (b),
(d), (e), (f) (insofar as it relates to the corporate documents of the
Purchaser), (j), (k), (l) (insofar as it relates to sub-clauses (iv) and
(v) thereof) and (o) of Section 3.02 and clause (k) of Section 3.03;
(b) in the case of each of the Program Administrator and the
Purchaser, the fulfillment to its satisfaction, or waiver by it, of the
conditions precedent set forth in all clauses of Section 3.02 and in
Section 3.03; and
(c) in the case of the Collection Agent, the fulfillment to its
satisfaction or waiver by it, of the conditions precedent set forth in
clauses (a) through (g), (j) and (k) of Section 3.02 and in Section 3.03.
Section 3.02. CONDITIONS PRECEDENT ON THE CLOSING DATE. The
conditions precedent for each Party as specified in Section 3.01 hereof for the
Closing Date are as follows:
(a) PROGRAM DOCUMENTS. The Program Documents shall have been duly
authorized, executed and delivered by the other Parties thereto, and shall
be in full force and effect on such date.
(b) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of each Party contained in this Agreement and the other Program
Documents shall be true and accurate in all material respects on and as of
such date as though made on and as of such date, except to the extent that
such representations and warranties relate solely to an earlier date (in
which case such representations and warranties shall be true and accurate
in all material respects on and as of such earlier date).
(c) Intentionally omitted.
(d) APPROVALS. All Governmental Authorizations, Private
Authorizations and Governmental Filings, if any, on the part of the
Parent, the Distributor, the Advisor, the Collection Agent, the Companies,
the Funds, the Program Administrator and the Purchaser that are required
to be obtained or done in order to permit the execution, delivery and
performance by the Parent, the Distributor, the Advisor, the Collection
Agent, the Program Administrator or the Purchaser, as the case may be, of
the Program Documents to which it is a party shall have been duly obtained
or delivered.
(e) PURCHASER DOCUMENTS. The other Parties shall have received
certified copies of (i) evidence that the execution, delivery and
performance by the Purchaser of this Agreement and the other Program
Documents to which it is a party and any other documents to be executed by
or on behalf of the Purchaser in connection with the transactions
contemplated hereby or thereby have been duly authorized, and (ii) an
incumbency certificate of the Purchaser as to the person or persons
authorized to execute
3
<PAGE> 8
and deliver all Program Documents to which the Purchaser is a party with
specimen signatures of such persons acting on behalf of the Purchaser.
(f) CORPORATE DOCUMENTS. The other Parties shall have received (i) a
copy of the certificate of incorporation or similar organizational
document of each of the Advisor, the Parent, the Distributor and the
Purchaser certified by the Secretary of State of the state of organization
of such Person, (ii) the by-laws or similar organizational document of
each of the Advisor, the Parent and the Distributor and the resolutions of
the Board of Directors or governing body of each such Sponsor Entity duly
authorizing the execution, delivery and performance by such Sponsor Entity
of the Program Documents to which it is a party, each certified by a
Responsible Officer, (iii) an incumbency certificate of each of the
Advisor, the Parent, the Distributor and the Purchaser as to the person or
persons authorized to execute and deliver all Program Documents to which
each such Person is a party with specimen signatures of such persons
acting on behalf thereof, and (iv) a certificate of good standing of each
of the Advisor, the Parent, the Distributor and the Purchaser issued by
the Secretary of State of the state of organization of each such Person.
(g) CLOSING CERTIFICATES. On such date, the following statements
shall be true and each of the Purchaser and the Program Administrator
shall have received a certificate of each of the Advisor, the Parent and
the Distributor certifying as to the accuracy of the following statements
as to itself:
(i) the representations and warranties by it contained in
this Agreement and the other Program Documents to
which it is a party are true and accurate in all
material respects on and as of such date as though
made on and as of such date, except to the extent
that such representations and warranties relate
solely to an earlier date (in which case such
representations and warranties shall be true and
accurate in all material respects on and as of such
earlier date);
(ii) it has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied on
or prior to such date pursuant to the Program Documents;
and
(iii) no event has occurred and is continuing, or will result
from the closing of the transactions on such date that
constitutes an Event of Termination or an event which,
with the passage of time or notice or both would
constitute an Event of Termination.
(h) DISTRIBUTION PLANS AND DISTRIBUTOR'S CONTRACTS. The Program
Administrator and the Purchaser shall have received a copy of a
certificate of the President, any Vice President, the Secretary or any
Assistant Secretary of the Parent certifying that a true and complete copy
of each of the following documents is attached thereto and has been duly
authorized, executed and delivered by each of the parties thereto, and in
the case of each Fund, has been approved in the manner required by the
Investment Company Act and the rules and regulations adopted thereunder:
4
<PAGE> 9
(i) the Distribution Plan of each Fund relating to the
Purchased Portfolio Assets, which shall be substantially
in the form of Exhibit D hereto; and
(ii) the Distributor's Contracts relating to the Portfolio
Assets, which shall be substantially in the form of
Exhibit E hereto.
(i) PROSPECTUS. The Program Administrator and the Purchaser shall
have received a copy of a certificate of the President, any Vice
President, the Secretary or any Assistant Secretary of the Parent
certifying that a true and complete copy of the current Prospectus for
each Fund is attached and that no change therein has been proposed which
if in effect on such date would cause the representation of the Parent set
forth in Section 4.02(a) to be incorrect.
(j) ILLEGALITY. No change shall have occurred after the date of
execution and delivery of this Agreement in Applicable Law or regulations
thereunder or interpretations thereof by appropriate regulatory
authorities or any court that would make it illegal for any Party to
execute, deliver and perform the Program Documents to which it is a Party
and no action or proceeding shall have been instituted nor shall any
action or proceeding be threatened before any court or governmental
agency, nor shall any order, judgment or decree have been issued by any
court or governmental agency prior to such date, to set aside, restrain,
enjoin or prevent the completion and consummation of this Agreement or any
other Program Document or the transactions contemplated hereby or thereby.
(k) OBLIGATIONS. Each obligation to be performed in favor of such
Party by any other Party on or before such date pursuant to any Program
Document shall have been performed.
(l) OPINIONS OF COUNSEL. Each of the Purchaser and the Program
Administrator shall have received each of the following opinions addressed
to it and dated the Closing Date (and on which the Investors are entitled
to rely) and each of the Parties hereto shall have received the opinion
described in subclause (v) below addressed to it and dated the Closing
Date (and on which the Investors are entitled to rely):
(i) Hale and Dorr LLP, special counsel to the Parent, the
Distributor and the Advisor, substantially in the form
of Exhibit G-1;
(ii) Hale and Dorr LLP, special counsel to each Company,
substantially in the form of Exhibit G-2;
(iii) Hale and Dorr LLP, special counsel to the Parent, the
Distributor and the Advisor on certain issues under the
Bankruptcy Code, substantially in the form of Exhibit
G-3;
(iv) Seward & Kissel, special counsel to the Collection
Agent, substantially in the form of Exhibit G-4; and
5
<PAGE> 10
(v) Seward & Kissel, special counsel to the Purchaser,
substantially in the form of Exhibit G-5.
(m) CERTAIN FEES AND EXPENSES. Subject to Section 8.04 (a), the
Parent, the Advisor or the Distributor shall have paid, upon request, all
reasonable fees and expenses of the Purchaser, the Program Administrator
and the Collection Agent (including the reasonable accrued fees and
expenses of counsel to the Purchaser, the Program Administrator and the
Collection Agent) then due and payable in accordance herewith.
(n) INVESTOR REPORTS. The Distributor shall have delivered to the
Purchaser and the Program Administrator final forms of periodic reports
proposed to be delivered by the Transfer Agent furnishing information
needed to complete any Investor Reports due on or prior to such date,
which shall be substantially in the form of Exhibit H hereto and otherwise
in form and substance reasonably satisfactory to the Purchaser and the
Program Administrator.
(o) PROGRAM COLLECTIONS. No Company shall be prevented by any
Authority or by any Applicable Law from paying Program Collections and
Related Collections to the Program Collection Account in accordance with
the applicable Irrevocable Payment Instruction and no Company shall have
so asserted in writing.
(p) OTHER DOCUMENTS. The Purchaser and the Program Administrator
shall have received such other instruments, documents, certificates and
opinions as the Purchaser and the Program Administrator may have
reasonably requested in order to establish the taking of all appropriate
corporate or partnership and other proceedings in connection herewith, the
consummation of the transactions contemplated hereby, and compliance with
the conditions herein set forth, in connection with the Portfolio Assets
relating to any Fund and the Purchase Price payable, each such instrument,
document, certificate and opinion to be in form and substance reasonably
satisfactory to such Party.
Section 3.03. CONDITIONS PRECEDENT ON THE INITIAL PURCHASE FUNDING
DATE AND EACH PURCHASE DATE. The conditions precedent for each Party as
specified in Section 3.01 hereof for the Initial Purchase Funding Date shall be
as set forth in clauses (c) and (n) of this Section 3.03 and for each Purchase
Date shall be as follows:
(a) PROGRAM DOCUMENTS. Each of the Program Documents shall be in
full force and effect on such date.
(b) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of each Party contained in the Program Documents shall be true
and accurate in all material respects on and as of such date as though
made on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date (in which
case such representations and warranties shall be true and accurate in all
material respects on and as of such earlier date).
(c) CERTAIN FEES AND EXPENSES. Subject to Section 8.04 (a), the
Parent, the Advisor or the Distributor shall have paid all reasonable fees
and expenses of the Purchaser and the Program Administrator (including the
reasonable accrued fees and
6
<PAGE> 11
expenses of counsel to the Purchaser and the Program Administrator) then
due and payable in accordance herewith, except to the extent the same have
been paid out of Program Collections pursuant to the Program Collection
Agency Agreement.
(d) INVESTOR REPORTS. The Distributor shall have delivered to the
Purchaser and the Program Administrator any Investor Reports due on or
prior to such date, which shall be substantially in the form of Exhibit H
hereto and otherwise in form and substance reasonably satisfactory to the
Purchaser and the Program Administrator.
(e) PROGRAM COLLECTIONS. No Company shall be prevented by any
Authority or by any Applicable Law from paying Program Collections and
Related Collections to the Program Collection Account in accordance with
the applicable Irrevocable Payment Instruction and no Company shall have
so asserted in writing.
(f) NO EVENT OF TERMINATION. No Event of Termination or event which,
with the passage of time, or notice or both, would constitute an Event of
Termination shall have occurred and be continuing as of such date, unless
the Program Administrator shall have waived such Event of Termination or
other event in writing.
(g) PURCHASE LIMIT. Immediately after giving effect to all such
Purchases on such Purchase Date, the Purchase Limit shall be equal to or
greater than zero.
(h) NO ASSERTED DEFENSES. There shall not have occurred, and no
Person (including any trustee in bankruptcy of any Person) shall have
asserted, any dispute, offset, counterclaim, defense or Adverse Claim
whatsoever in respect of all or any portion of the Purchased Portfolio
Assets to be acquired by the Purchaser on such date.
(i) CESSATION OF SHARE ISSUANCE. No Portfolio Asset to be purchased
by the Purchaser on such date arises (i) in respect of Shares of a Fund
which has been or to any Sponsor Entity's Actual Knowledge shall be
required by any Authority or any Applicable Law to cease or suspend the
sale of Shares or (ii) in respect of Shares of a Fund which shall have
voluntarily ceased or suspended the sale of Shares; provided, HOWEVER,
that the parties hereto agree that the voluntary cessation or suspension
of the sales of Shares by a Fund solely as a result of rapid growth or
excessive asset size is not such circumstances and PROVIDED, FURTHER, that
if this condition is not satisfied with respect to Portfolio Assets
arising from a particular Fund, only the Portfolio Assets arising from the
affected Fund shall be excluded from the Purchase on such Purchase Date
and this condition will be deemed satisfied in respect of all other Funds
not so affected.
(j) NO LIQUIDATION OR MERGER OF FUNDS. No Portfolio Asset to be
purchased by the Purchaser on such date arises in respect of Shares of a
Fund which shall have proposed or effected a merger or other combination
with another Person (other than a Permitted Merger) or Liquidation Plan.
(k) FUND BOARD CANVAS. In the case of the first Purchase Date
following the Initial Purchase Date, the Parent shall have obtained such
indication from the board of
7
<PAGE> 12
trustees of each of the Funds as the Parent deems satisfactory, that such
boards of trustees have no objection to the ongoing Purchases as
contemplated by the Purchase Agreement.
(l) NOTICE OF FUND BOARD CANVAS. In the case of each Purchase Date
following the Initial Purchase Date, the Parent shall have given the
Program Administrator notice prior to November 30, 1998 that the condition
precedent set forth in clause (k) of this Section 3.03 has been satisfied
or waived by the Parent.
(m) DUE DILIGENCE MEETING. In the case of Purchases occurring after
the Initial Purchase Date, the Program Administrator and representatives
of the rating agencies shall have held a due diligence meeting (telephonic
or otherwise) with representative members of the trustees of each of the
Funds, the results of which are reasonably satisfactory to the Program
Administrator and such representatives of the rating agencies.
(n) SECURITY DOCUMENTS. Copies of UCC financing statements and UCC
search reports, in form and substance acceptable to the Purchaser and the
Program Administrator, covering the interests in the Purchased Portfolio
Assets to be conveyed by the Distributor to the Purchaser pursuant to the
Purchase Agreement, shall have been delivered by the Distributor to the
Purchaser and shall evidence to the satisfaction of the Program
Administrator and the Purchaser the conveyance to the Purchaser of an
ownership interest therein free and clear of Adverse Claims. Such
financing statements shall have been duly filed in all places where, and
all other actions shall have been taken which are, in the opinion of
counsel for the Program Administrator, necessary or advisable to perfect
the interests reflected thereon.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. REPRESENTATIONS AND WARRANTIES OF THE ADVISOR, THE
PARENT AND THE DISTRIBUTOR. Each of the Advisor, the Parent and the Distributor
represents and warrants on and as of the Closing Date, on the Initial Purchase
Funding Date and each Purchase Date and, as to clause (l) hereof, on the date
such information is provided, as to itself and, in the case of the Parent, as to
each Sponsor Entity, as follows:
(a) it is duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its organization, with
corporate power and authority to own and operate its property, conduct the
business in which it is now engaged and to execute, deliver and perform
its obligations under this Agreement and the other Program Documents to
which it is a party, and it is in compliance with all Applicable Law and
duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the nature of its business or the
performance of its obligations under this Agreement and the other Program
Documents to which it is a party requires such qualification, where the
failure to so comply or to be so qualified could reasonably be expected to
give rise to an Adverse Effect;
8
<PAGE> 13
(b) the execution, delivery and performance by it of this Agreement,
the other Program Documents to which it is a party and the other
instruments and agreements contemplated hereby or thereby have been duly
authorized by all requisite corporate action by it and have been duly
executed and delivered by it and constitute its legal, valid and binding
obligations, enforceable against it in accordance with their respective
terms, except as such enforceability may be limited by applicable
bankruptcy laws and any other similar laws affecting the rights and
remedies of creditors generally and by general principles of equity;
(c) neither the execution and delivery of this Agreement, the other
Program Documents to which it is a party, or any instrument or agreement
referred to herein or therein, or contemplated hereby or thereby, nor the
consummation of any of the transactions herein or therein contemplated,
nor compliance with the terms, conditions and provisions hereof or thereof
by it (i) will conflict with, or result in a breach or violation of, or
constitute a default under, its certificate of incorporation, by-laws or
other organizational documents, (ii) will conflict with, or result in a
breach or violation of, or constitute a default under, or permit the
acceleration of any obligation or liability in or result in the
termination of, or but for any requirement of the giving of notice or the
passage of time (or both) would constitute such a conflict with, breach or
violation of, or default under, or permit any such acceleration in or
result in the termination of, any [contractual obligation or any agreement
or document to which it is a party or by which it or any of its properties
is bound (or to which any such obligation, agreement or document relates,
including any Distributor's Contract and any Distribution Plan) where such
conflict, breach, violation or default could reasonably be expected to
give rise to an Adverse Effect, (iii) will violate any Applicable Law, the
violation of which could reasonably be expected to give rise to an Adverse
Effect, (iv) could reasonably be expected to give rise to or permit the
creation or imposition of any Adverse Claim upon the Portfolio Assets, the
Program Collections or the Related Collections relating to any Fund, or
(v) could reasonably be expected to give rise to any other Adverse Effect;
(d) it has obtained all Governmental Authorizations and Private
Authorizations, and made all Governmental Filings, necessary for the
execution, delivery and performance by it of this Agreement, the other
Program Documents to which it is a party and the agreements and
instruments contemplated hereby or thereby and no consents which have not
been obtained or waivers under any instruments to which it is a party or
by which it or any of its properties is bound are required by it to be
obtained in connection with the execution, delivery or performance of this
Agreement and the other Program Documents, except to the extent the
failure to so obtain or make the same could not reasonably be expected to
give rise to an Adverse Effect;
(e) each of the applicable conditions precedent set forth in Article
III has been satisfied or waived in writing;
(f) it is not in default in any of its obligations under this
Agreement or any other Program Document to which it is a party which
default could reasonably be expected to give rise to an Adverse Effect;
9
<PAGE> 14
(g) there are no proceedings or investigations pending, or, to the
best of its knowledge, threatened, against it before any Authority (i)
asserting the invalidity of this Agreement, any other Program Document to
which it is a party or any certificate, document or agreement executed by
it in connection herewith or therewith, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or
any other Program Document, or (iii) seeking any determination or ruling
which, if granted, could reasonably be expected to adversely affect the
performance by it of its obligations under, or the validity or
enforceability of, this Agreement, any other Program Document to which it
is a party or any agreement, certificate or document executed by it in
connection herewith or therewith, which in each case, if adversely
determined, could reasonably be expected to give rise to an Adverse
Effect;
(h) it is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act;
(i) it is not engaged principally or as one of its important
activities in the business of extending, or arranging for the extension
of, credit for the purpose of purchasing or carrying any margin stock
within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System and no part of the proceeds of the Purchase Price
paid to it, if any, under the Purchase Agreement will be used to purchase
or carry any margin stock within the meaning of said regulation (except
investments in funds managed by an Affiliate of the Parent in accordance
with ordinary business operations) or to extend credit to others for such
purpose in a manner which is inconsistent with or a violation of the
provisions of said regulation, and it will not hold margin stock
(including shares in such funds) such that the aggregate current market
value (as defined in said regulation) of all thereof shall exceed 25% of
the value (as determined by any reasonable method) of its consolidated
assets;
(j) all written information provided by it or by the Data Processing
Service Provider at its request to the Purchaser, the Program
Administrator or any other Person in writing for purposes of or in
connection with this Agreement, the other Program Documents to which it is
a party or the transactions contemplated hereby or thereby is, and all
such information hereafter provided by any such Person to the Purchaser,
the Program Administrator or any other Person in writing will be, true,
correct and complete in all material respects and not misleading in any
material respect;
(k) neither it nor any ERISA Affiliate has engaged in a "prohibited
transaction," as such term is defined in Section 4975 of the Code or in a
transaction subject to the prohibitions of Section 406 of ERISA, which
would subject it or any ERISA Affiliate (after giving effect to any
exemption) to the tax or penalty on prohibited transactions imposed by
Section 4975 of the Code, Section 502 of ERISA or any other liability
under ERISA which tax, penalty or other liability could reasonably be
expected to have an Adverse Effect; neither the transactions contemplated
hereby nor the exercise of any of the Purchaser's or the Program
Administrator's rights and remedies under any Program Documents will
result in the Purchaser or the Program Administrator being a fiduciary or
party-in-interest, as defined in Section 3 of ERISA, with respect to a
Plan established or maintained by the Seller, the Parent, the Distributor,
any Sponsor Entity, or
10
<PAGE> 15
an ERISA Affiliate, or with respect to any Plan whose assets are deemed to
be held by an such entity under the Department of Labor Regulations
Section 2510.3-101 ET SEQ., and neither the transactions contemplated
hereby nor the exercise of any of the Purchaser's or the Program
Administrator's rights and remedies under any Program Documents will
result in a prohibited transaction (after giving effect o any exemption)
under Section 406 of ERISA or Section 4975(c) of the Code, other than a
prohibited transaction (after giving effect to any exemption) which
results because the source of funds utilized by the Purchaser for the
contemplated transactions are determined to be plan assets under the
Department of Labor Regulations Section 2510.3-101 ET SEQ.;
(l) it has filed or caused to be filed all federal, state and local
tax returns which are required to be filed (except where such nonfiling
could not reasonably be expected to have an Adverse Effect), and paid or
caused to be paid all taxes as shown on said returns or any other taxes or
assessments payable by it to the extent that such taxes have become due
unless the same are being contested in good faith by appropriate
proceedings, and in respect of which appropriate reserves have been
established and the nonpayment of which could not reasonably be expected
to have an Adverse Effect;
(m) neither it nor, to its Actual Knowledge, any of its Affiliates,
is contemplating the filing of a petition by it under any state or federal
bankruptcy or insolvency laws, and it has no Actual Knowledge of any
Person contemplating the filing of any such petition against it or any of
its Affiliates;
(n) all financial statements of the Parent and its consolidated
subsidiaries delivered to the other Parties fairly present in all material
respects the Parent's assets, liabilities and financial condition and
income as of the dates thereof and have been prepared in accordance with
GAAP consistently applied; as of the date hereof, there exists no material
equity or long-term investments in, or outstanding advances to, or
guarantees of, any Person except such equity, investments, advances, or
guaranties reflected in the financial statements or in the footnotes
thereto;
(o) all action, which may be taken by the Parent, the Distributor,
the Advisor, the Fund or their Transfer Agents, necessary or advisable to
protect, preserve and perfect the Purchaser's first priority ownership
interest in the Purchased Portfolio Assets free and clear of all Adverse
Claims has been duly and effectively taken and no security agreement,
financing statement, equivalent security or lien instrument or
continuation statement covering all or any part of such Purchased
Portfolio Assets is required to be on file or on record in any
jurisdiction, except such as may have been filed, recorded or made as
contemplated by this Agreement and the other Program Documents;
(p) the factual assumptions set forth in the opinion of Hale and
Dorr LLP dated as of the Closing Date on certain bankruptcy matters
including "true sale" issues are true and correct as of such date; and
(q) it has taken all reasonable measures, consistent with the
practice and custom in the investment management industry, to eliminate
the Year 2000 Problem in its computer applications prior to the year 2000
to the extent the same could reasonably be
11
<PAGE> 16
expected to have an Adverse Effect; and the Year 2000 Problem will not
adversely affect its ability to perform its obligations under this
Agreement or the other Program Documents or the collectibility of the
Portfolio Assets generally or any material portion of the Portfolio
Assets, provided that all Parties to the Program Documents agree that no
Adverse Effect will be deemed to have occurred if (i) the payment of all
Program Collections is made as and when required pursuant to the
Irrevocable Payment Instructions and (ii) aggregate damages, losses,
liabilities and expenses related to the Year 2000 Problem are less than
$50,000 and restitution for such damages, losses, liabilities and expenses
is paid to the appropriate Indemnified Party as required by Section 8.02
of this Agreement.
Section 4.02. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE
PARENT. The Parent represents and warrants on and as of the Closing Date, on the
Initial Purchase Funding Date and each Purchase Date, as follows:
(a) the Parent has delivered to the Purchaser and the Program
Administrator a true, correct and complete copy of each Distribution Plan,
Distributor's Contract, Advisory Agreement and each Prospectus in effect
on the date of this Agreement or, in the case of each Advisory Agreement
and each Prospectus, as subsequently amended and delivered to the
Purchaser, each of which is in full force and effect and has not been
amended in any manner from the form delivered except: (i) in respects
which could not reasonably be expected to give rise to an Adverse Effect
or (ii) with the prior written consent of the Program Administrator; and
the Fundamental Investment Objectives and Policies relating to each Fund
have not been changed in any respect from those set forth in the
Prospectus so delivered, except as approved by (1) the board of directors
or trustees of such Fund and (2) the shareholders of such Fund;
(b) each of the Funds is in compliance with the Fundamental
Investment Objectives and Policies relating to such Fund and has taken all
reasonable measures, consistent with the practice and custom in the
investment management industry, to eliminate the Year 2000 Problem in its
computer applications prior to the year 2000, in each case to the extent
the same could reasonably be expected to have an Adverse Effect;
(c) each of the Distributor, the Program Servicer Agent, the
Advisor, each Company, each Advisory Agreement, each Distribution Plan,
each Distributor's Contract, the Prospectus of each Fund, each Redemption
Feature applicable to the Shares and each Contingent Deferred Sales Charge
arrangement applicable to the Shares, in each case relating to each Fund,
is in compliance with Applicable Law, including the Investment Company
Act, Rule 12b-1 thereunder and the Conduct Rules, in each case except to
the extent the same could reasonably be expected to have an Adverse
Effect;
(d) the Asset Based Sales Charge and Contingent Deferred Sales
Charge arrangements relating to the Shares of each Fund and the payments
provided for in, and actually being made pursuant to, the Distribution
Plan and the Prospectus for each such Fund are fairly and accurately
described in the Distribution Plan and Prospectus relating to such Fund;
12
<PAGE> 17
(e) the Parent owns directly or indirectly one hundred percent
(100%) of the capital stock of the Advisor and the Distributor;
(f) the Distributor is a registered broker-dealer under the Exchange
Act, and is a member of the NASD;
(g) neither the Advisor, the Distributor, any Company, any Fund nor
any Transfer Agent is prevented by any Applicable Law from paying the
Program Collections directly to the Program Collection Account in
accordance with the applicable Irrevocable Payment Instruction; and
(h) the Purchased Portfolio Assets relating to each Fund constitute
Eligible Portfolio Assets.
Section 4.03. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE
DISTRIBUTOR. The Distributor represents and warrants, on and as of each Closing
Date, the Initial Purchase Funding Date and the Purchase Date, in its capacities
as Distributor and Program Servicer Agent, as follows:
(a) The Distributor has the requisite corporate power and authority
and legal right to sell Portfolio Assets relating to each Fund, and the
Program Collections and the Ancillary Rights with respect thereto, to the
Purchaser in accordance with the terms of this Agreement and the Purchase
Agreement, and the Distributor has duly authorized each such sale to the
Purchaser by all necessary action;
(b) the transfer of Purchased Portfolio Assets to the Purchaser
under the Purchase Agreement on such date constitutes a valid and complete
True Sale to the Purchaser of all right, title and interest in and to such
Purchased Portfolio Assets free and clear of any Adverse Claim; such
transfer has not been made with an intent to hinder, delay or defraud any
present or future creditor; the Purchase Price for such Portfolio Assets
is fair consideration and of reasonably equivalent value to the Purchased
Portfolio Assets so transferred; and immediately after the purchase
pursuant to the Purchase Agreement the Distributor will remain solvent and
will have adequate capital for the conduct of its business;
(c) immediately after the purchase of Purchased Portfolio Assets by
the Purchaser under the Purchase Agreement on such date, (i) no Person
(other than the Purchaser and other Persons claiming through the
Purchaser) claiming through the Distributor has any right, title or
interest in such Portfolio Assets or the Ancillary Rights or Program
Collections with respect thereto; (ii) the Purchaser owns such Portfolio
Assets and the Ancillary Rights and Program Collections with respect
thereto free and clear of all Adverse Claims or other such restrictions on
transfer created by or arising out of the acts or omissions of the
Distributor; and (iii) such Purchased Portfolio Assets and the Ancillary
Rights and the right to Program Collections with respect thereto have not
been sold, transferred or assigned by the Distributor to any other Person;
(d) neither the Distributor (as Distributor or Program Servicer
Agent) nor any Company nor Transfer Agent is prevented by any Authority or
by any Applicable Law
13
<PAGE> 18
from paying the Program Collections and Related Collections directly to
the Program Collection Account in accordance with the applicable
Irrevocable Payment Instruction;
(e) the Distributor is a registered broker-dealer under the Exchange
Act, and is a member of the NASD;
(f) the Distributor has clearly and unambiguously marked its books,
records and electronic, computer files and master data processing records
relating to the Portfolio Assets to indicate the interests of the
Purchaser in the Purchased Portfolio Assets;
(g) giving effect to the transactions contemplated by this Agreement
and the Purchase Agreement on such date, the sum of the Distributor's
assets exceeds and will, immediately following suchtransactions, exceed
the Distributor's total liabilities (including subordinated, unliquidated,
disputed and contingent liabilities). The Distributor's assets do not and,
immediately following the transactions contemplated hereby will not,
constitute unreasonably small capital to carry out its business as
conducted or as proposed to be conducted. The Distributor does not intend
to, and does not believe that it will, incur debts and liabilities
(including contingent liabilities and other commitments) beyond its
ability to pay such debts as they mature (taking into account the timing
and amounts to be payable on or in respect of obligations of the
Distributor);
(h) the Distributor has not used any trade names or assumed names
other than Pioneer Funds Distributor, Inc.;
(i) this Agreement and the Purchase Agreement and the actions of the
Distributor required to be taken pursuant to the terms hereof and thereof
are and at all times shall be effective to transfer to the Purchaser all
of the Distributor's right, title and interest in, to and under the
Purchased Portfolio Assets free and clear of any Adverse Claim;
(j) the Purchased Portfolio Assets relating to each Fund constitute
Eligible Portfolio Assets; and
(k) the principal place of business and chief executive office of
the Distributor and the place where any and all records concerning the
Purchased Portfolio Assets are kept, is at its address specified in
Section 8.03 (except as otherwise permitted by Section 5.01(n)).
Section 4.04. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE
ADVISOR. The Advisor represents and warrants, on and as of the Closing Date, the
Initial Purchase Funding Date and each Purchase Date, as follows:
(a) the Advisor and each of the Companies is in compliance with the
Fundamental Investment Objectives and Policies relating to each Fund as
set forth in the prospectuses which have been delivered to the Purchaser
and the Program Administrator, in each case except to the extent
noncompliance could not reasonably be expected to have an Adverse Effect;
and
14
<PAGE> 19
(b) the Advisor is a registered investment adviser under the
Investment Advisers Act.
Section 4.05. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The
Purchaser represents and warrants on and as of the Closing Date, the Initial
Purchase Funding Date and each Purchase Date as follows:
(a) it is duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its organization, with
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the other Program Documents to which
it is a party, and it is in compliance with all Applicable Law and duly
qualified to do business as a foreign corporation and is in good standing
in each jurisdiction in which the performance of its obligations under
this Agreement and the other Program Documents to which it is a party
requires such qualification, where the failure to so comply or to be so
qualified could reasonably be expected to have a material adverse effect
on its ability to perform its obligations under the Program Documents;
(b) the execution, delivery and performance by it of this Agreement,
the other Program Documents to which it is a party and the other
instruments and agreements contemplated hereby or thereby have been duly
authorized by all requisite corporate action by it and have been duly
executed and delivered by it and constitute its legal, valid and binding
obligations, enforceable against it in accordance with their respective
terms, except as such enforceability may be limited by applicable
bankruptcy laws and any other similar laws affecting the rights and
remedies of creditors generally and by general principles of equity;
(c) neither the execution and delivery of this Agreement, the other
Program Documents to which it is a party, or any instrument or agreement
referred to herein or therein, or contemplated hereby or thereby, nor the
consummation of any of the transactions herein or therein contemplated,
nor compliance with the terms, conditions and provisions hereof or thereof
by it (i) will conflict with, or result in a breach or violation of, or
constitute a default under, its certificate of incorporation, (ii) will
conflict with, or result in a breach or violation of, or constitute a
default under, or permit the acceleration of any obligation or liability
in or result in a termination of, any contractual obligation or any
agreement or document to which it is a party or by which it or any of its
properties is bound (or to which any such obligation, agreement or
document relates) where such conflict, breach, violation or default could
reasonably be expected to have a material adverse effect on its ability to
perform its obligations under the Program Documents, or (iii) will violate
any Applicable Law, in each case except to the extent the same results
from a breach of representation, warranty or covenant of the Distributor,
the Advisor or the Parent and except to the extent the same could not
reasonably be expected to have a material adverse effect on its ability to
perform its obligations under the Program Documents;
(d) it has sufficient resources, including its rights under certain
funding arrangements and its ability to access the capital markets, to
meet its obligations under the Program Documents to which it is a party;
15
<PAGE> 20
(e) there are no proceedings or investigations pending, or, to the
best of its knowledge, threatened, against it before any Authority (i)
asserting the invalidity of this Agreement, any other Program Document to
which it is a party or any certificate, document or agreement executed by
it in connection herewith or therewith, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or
any other Program Document, or (iii) seeking any determination or ruling
which, if granted, could reasonably be expected to adversely affect the
performance by it of its obligations under, or the validity or
enforceability of, this Agreement, any other Program Document to which it
is a party or any agreement, certificate or document executed by it in
connection herewith or therewith, which in each case, if adversely
determined, could reasonably be expected to have a material adverse Effect
on its ability to perform its obligations under the Program Documents to
which it is a party;
(f) it has obtained all Governmental Authorizations and Private
Authorizations, and made all Governmental Filings, necessary for the
execution, delivery and performance by it of this Agreement, the other
Program Documents to which it is a party and the agreements and
instruments contemplated hereby or thereby and no consents which have not
been obtained or waivers under any instruments to which it is a party or
by which it or any of its properties is bound are required by it to be
obtained in connection with the execution, delivery or performance of this
Agreement and the other Program Documents to which it is a party, except
to the extent the failure to so obtain or make the same could not
reasonably be expected to have a material adverse effect on its ability to
perform its obligations under the Program Documents to which it is a
party; and
(g) neither it nor, to its Actual Knowledge, any of its Affiliates,
is contemplating the filing of a petition by it under any state or federal
bankruptcy or insolvency laws, and it has no Actual Knowledge of any
Person contemplating the filing of any such petition against it or any of
its Affiliates.
ARTICLE V
COVENANTS
Section 5.01. COVENANTS OF THE ADVISOR, THE PARENT AND THE
DISTRIBUTOR. Each of the Advisor, the Parent and the Distributor covenants and
agrees that it shall and, in the case of the Parent, that it shall cause each
other Sponsor Entity to:
(a) (i) preserve and maintain its legal existence , and duly observe
and conform to all requirements of Applicable Law relative to it, the
conduct of its business or to its properties or assets, (ii) preserve and
keep in full force and effect its corporate existence, rights, privileges
and franchises, and maintain records of its resolutions or similar actions
regarding the transactions contemplated by the Program Documents to which
it is a party, and (iii) obtain, maintain and keep in full force and
effect all Governmental Authorizations and Private Authorizations which
are necessary or appropriate for each Sponsor Entity and each Fund to
properly carry out the transactions contemplated to be performed by it
under this Agreement and the other Program
16
<PAGE> 21
Documents, except in each such case under clauses (i) through (iii) where
the failure to so observe, conform to, preserve, obtain, maintain or keep
in full force and effect could not reasonably be expected to give rise to
an Adverse Effect;
(b) duly fulfill all obligations on its part to be performed under
or in connection with the other Program Documents to which it is a party,
and the agreements and instruments entered into in connection herewith or
therewith;
(c) keep proper books of record and account in accordance with its
normal business practice in which full and appropriate entries shall be
made of all dealings or transactions in relation to its business and
activities in connection with this Agreement and the other Program
Documents and shall (in the case of the Distributor) mark its data
processing or other records, if any, so as to clearly indicate that the
Purchased Portfolio Assets have been sold by the Distributor to the
Purchaser;
(d) (i) promptly, upon Actual Knowledge, give written notice to the
Program Administrator of the occurrence of any Event of Termination (or
event which, with the passage of time or notice, or both, would constitute
an Event of Termination), the failure of any conditions precedent set
forth in Section 3.02 or Section 3.03 to be fully satisfied on or
immediately prior to the Closing Date or the Purchase Date, as the case
may be, or any breach of any term or condition of any Program Document,
which in each case relates to or is caused by it or any of its Affiliates
or the performance of any such Persons under any Program Document, (ii)
give written notice to the Program Administrator, promptly after it
becomes aware thereof, of any other Event of Termination (or event which
with the passage of time, notice or both would constitute such an Event of
Termination), or the failure of any other conditions precedent set forth
in Section 3.02 or Section 3.03 or any other breach of any terms or
conditions of any Program Documents which could reasonably be expected to
give rise to an Adverse Effect, and (iii) promptly give written notice to
the Program Administrator of any litigation or proceedings with respect to
it or any of its Affiliates or affecting it, any of its Affiliates or any
of their respective assets or properties, which if adversely determined,
could reasonably be expected to give rise to an Adverse Effect;
(e) cause to be paid and discharged when due all taxes, assessments
and other charges or levies of any Authority imposed upon it, or upon any
of its income or assets, unless and to the extent that the same shall be
contested in good faith by appropriate proceedings which could not
reasonably be expected to give rise to an Adverse Effect;
(f) to the extent obtained or received by it, furnish or cause to be
furnished to the Program Administrator a copy of all Private
Authorizations and all Governmental Authorizations obtained or required to
be obtained by it in connection with the transactions contemplated by this
Agreement, the Purchase Agreements and any other Program Documents to
which it is a party;
(g) annually, or more frequently as the Program Administrator may
reasonably request following the occurrence and during the continuance of
an Event of Termination (or an event which upon the passage of time or
notice, or both, would
17
<PAGE> 22
constitute an Event of Termination), (i) cause an independent nationally
recognized accounting firm selected by it and reasonably satisfactory to
the Program Administrator and the Parent to enter its premises upon
reasonable advance notice and during normal business hours (and each other
Person to whom it delegates any of its duties under the Program Documents)
and examine and audit the books, records and accounts relating to the
Portfolio Assets, the Program Collections with respect thereto and its or
such other Person's performance under the Program Documents, (ii) permit
such accounting firm to discuss its or such other Person's finances,
accounts and performance under the Program Documents with the officers,
partners, employees and accountants of it or such other Person, (iii)
cause such accounting firm to provide the Purchaser and the Program
Administrator with a report in respect of the foregoing, which shall be in
form and scope reasonably satisfactory to the Program Administrator and
the Purchaser, and (iv) authorize such accounting firm to discuss such
finances, records and accounts with representatives of the Program
Administrator or the Purchaser or any Permitted Designee;
(h) permit and cause each Person to which it delegates any of its
duties under the Program Documents to permit the Purchaser, the Program
Administrator or any Permitted Designee to, upon reasonable advance
notice, during normal business hours and in a manner which will not
interfere with the normal operations of such Person but, provided that an
Event of Termination (or an event which upon the passage of time or
notice, or both, would constitute an Event of Termination) has not
occurred, not more frequently than once every six (6) months, visit and
inspect its and such Person's books, records and accounts relating to the
Purchased Portfolio Assets, the Program Collections with respect thereto
and its performance under the Program Documents and to discuss the
foregoing with the officers, partners, employees and accountants of it and
such Person, all as often as the Purchaser, the Program Administrator or
any such Permitted Designee may reasonably request, all at the cost and
expense of the requesting party;
(i) promptly, at its expense, execute and deliver to the Program
Administrator and the Purchaser such further instruments and documents,
and take such further action as the Program Administrator or the Purchaser
may from time to time reasonably request in order to further carry out the
intent and purpose of this Agreement and the other Program Documents and
to establish and protect the rights, interests and remedies created, or
intended to be created, hereby and thereby, and the protection and
perfection of the Purchaser's first priority ownership interest in the
Purchased Portfolio Assets free and clear of all Adverse Claims,
including, without limitation, the execution, delivery, recordation and
filing of financing statements and continuation statements under the UCC
of any applicable jurisdiction;
(j) promptly deliver to the Program Administrator copies of all
material notices, requests, agreements, amendments, supplements, waivers
and other documents received (other than from the Purchaser or the Program
Administrator) or delivered by it under or with respect to any of the
Program Documents;
(k) in the event that, notwithstanding the Irrevocable Payment
Instructions, it shall receive any Program Collections or Related
Collections from any Company or
18
<PAGE> 23
Transfer Agent or other Person (other than the Collection Agent in
accordance with the Program Collection Agency Agreement), promptly upon
its receipt of any such Program Collections or Related Collections, remit
the same to the Collection Agent for deposit into the Program Collection
Account and, until such funds are so remitted to the Collection Agent,
ensure that such amounts are not commingled with any other funds;
(l) promptly notify the Program Administrator and the Purchaser of
any material adverse change with respect to its (or, to its Actual
Knowledge, any Company's or Fund's) business, properties (in respect of
properties, other than in the ordinary course of its and each Fund's
business (including changes attributable to the effect of market forces on
the Net Asset Value of the Funds), as conducted on the date hereof),
financial condition or results of operations of it, since the later of (i)
June 30, 1998, and (ii) the date of any audited financial statements
subsequently delivered to the Purchaser;
(m) not permit to exist any Adverse Claims on, or otherwise attempt
to transfer any interest in, any Portfolio Assets, any Ancillary Rights
with respect thereto, the Program Collections or any interest in any of
the foregoing; PROVIDED, HOWEVER, that in the event that the Purchaser
does not purchase certain Portfolio Assets relating to Shares of any Fund,
the Distributor may transfer all or a portion of its interest in such
Portfolio Assets and the Ancillary Rights with respect thereto to another
Person provided each of the following conditions are met: (1) such Person,
the Program Administrator, the Collection Agent and the Purchaser shall
have entered into a mutually satisfactory agreement and amendment to the
Program Collection Agency Agreement as contemplated by Section 8.06
thereof, specifying their respective rights with respect to the Portfolio
Assets, and (2) the Program Administrator, the Collection Agent and the
Purchaser shall have received such certificates and opinions as they may
reasonably request in connection therewith all in form, scope and
substance reasonably satisfactory to them;
(n) not amend, waive, terminate or otherwise modify the terms of any
Irrevocable Payment Instruction or take any action inconsistent with any
Irrevocable Payment Instruction;
(o) not act affirmatively in any manner not specifically authorized
by this Agreement to change its operations in any material manner if such
change could reasonably be expected to give rise to an Adverse Effect;
(p) not reflect, or permit any of its Affiliates to reflect, the
Purchased Portfolio Assets as being owned by the Distributor or any
Affiliate of the Distributor (except to the extent such treatment is
required by GAAP and all appropriate financial statements are footnoted to
reflect the sale thereof to the Purchaser);
(q) except as required by the Distributor's Contract or Distribution
Plan or its fiduciary obligation to the Funds, if any, not take any action
to cancel, terminate, amend, supplement, modify (including any
modification in the amount of the Asset Based Sales Charge or Contingent
Deferred Sales Charge whether or not such modification is permitted by the
terms thereof) or waive any of the provisions of the Distributor's
19
<PAGE> 24
Contract, the Distribution Plan, the Conversion Features, the Redemption
Features or the Contingent Deferred Sales Charge arrangements applicable
to the holders of any Shares of any Fund affecting its rights thereunder
(including by way of allowing Free Redemptions in respect of Shares of any
Fund under circumstances not required by the Prospectus of such Fund in
effect on the date of this Agreement or by allowing Free Redemptions which
are not Permitted Free Exchanges), or request, consent or agree to any
such cancellation, termination, amendment, supplement, modification or
waiver, except, with the prior written consent of the Program
Administrator to each such waiver;
(r) cause or ensure that all information provided to the Purchaser
or the Program Administrator for purposes of or in connection with this
Agreement or any other Program Document or the transactions contemplated
hereby or thereby by or on behalf of it at the request of any of the
foregoing is, and all such information hereafter provided by or on behalf
of it to the Purchaser or the Program Administrator will be, true,
correct, complete in all material respects and not misleading in any
material respect on the date such information is stated or certified;
(s) cause and ensure that all actions, which the opinion of Hale and
Dorr LLP dated as of the Closing Date on certain bankruptcy matters
including "true sale" and "substantive consolidation" assumes will be
taken or omitted by it, will be taken or omitted as so assumed;
(t) take all reasonable actions consistent with the practice in the
investment management industry to address the Year 2000 Problem in its
computer applications prior to the year 2000, to the extent the same could
reasonably be expected to have an Adverse Effect;
(u) except as otherwise required by the terms of this Agreement, in
the event the Asset Based Sales Charge payable by any Fund shall be
terminated or reduced as contemplated by the Distribution Plan and
Distribution Contract, it shall not, directly or indirectly, compensate,
or permit any of its Affiliates to compensate, any Person for the loss of
Shareholder Servicing Fees or Asset Based Sales Charges suffered by such
Person as a result of the actions taken in connection with such
termination or reduction; and
(v) cause to be provided to the Program Administrator prior to the
seventh Business Day of October 1998, the information requested pursuant
to the letter dated the date hereof from the Program Administrator to the
Distributor concerning updated September 30, 1998 information including
the Net Asset Value of each Fund and the Class B Shares thereof, the aging
of Purchased Portfolio Assets relating to each Fund and the aging of
Contingent Deferred Sales Charges in respect of each Fund.
Section 5.02. ADDITIONAL COVENANTS OF THE PARENT. The Parent
covenants and agrees that it shall:
(a) cause the Advisor to manage each applicable Fund in accordance
with the Fundamental Investment Objectives and Policies in respect of such
Fund as in effect from
20
<PAGE> 25
time to time, except to the extent failure to do so could not reasonably
be expected to have an Adverse Effect;
(b) subject to its fiduciary obligations to the Funds, use its best
efforts, which are commercially reasonable in relation to the consequences
to the Purchaser if they are not successful, to obtain the approval of the
board of trustees of each Company in respect of each Fund to: (a) annually
re-approve the Distribution Plan, the Advisory Agreements and the
Distributor's Contract relating to each Fund without change (whether or
not such change is permitted by the terms thereof) in the amount or
computation of the Asset Based Sales Charge or Contingent Deferred Sales
Charge payable thereunder and (b) in the event any of the foregoing shall
be terminated with respect to any Fund, to approve a new distribution
plan, advisory agreement and distributor's contract, in respect of such
Fund so as to permit the continued payments in respect of the Purchased
Portfolio Assets relating to such Fund without change (whether or not such
change is permitted by the terms thereof) in the amount of computation of
the Asset Based Sales Charge or Contingent Deferred Sales Charge payable
thereunder as though no such termination had occurred. In the event that
as a consequence of its fiduciary obligations to the Funds, it cannot
endeavor to obtain the approval of the board of directors or trustees of a
Company in respect of a Fund to take the actions described in clauses (a)
and (b) above, or in the event that despite its efforts such action will
not be taken, it shall, prior to taking any action inconsistent with the
actions described in clauses (a) and (b) above, or failing to take any
action it could otherwise take, or to any termination referred to in
clause (b) above: (i) notify the Purchaser and the Program Administrator
in writing of the nature of such failure or inability or termination and
(ii) if applicable, provide certification by a Responsible Officer that
such failure or inability is required in order to comply with such
fiduciary obligations;
(c) provide prompt written notice to the Purchaser and the Program
Administrator of any action by its board of directors, the board of
directors of the Advisor or the board of directors or trustees of any
Company in respect of any Fund to make any modification (including any
modification which affects the amount of the Asset Based Sales Charge or
Contingent Deferred Sales Charge whether or not such modification is
permitted by the terms thereof), amendment or supplement to, or any waiver
of any provisions of, or any termination, of any Distribution Plan, any
Distributor's Contract, any Advisory Agreement, any Conversion Feature,
any Redemption Feature, any Contingent Deferred Sales Charge arrangement,
any Fundamental Investment Objectives and Policies of any Company in
respect of any Fund, or any modification, amendment, supplement or waiver
in the amounts payable or actually being paid thereunder, each as in
effect on the date of that agreement, to the extent that any such
modification, amendment, supplement or waiver could reasonably be expected
to give rise to an Adverse Effect;
(d) cause each of the Advisor and the Distributor to comply in all
respects with its covenants under the Program Documents at all times;
(e) furnish to the Program Administrator:
21
<PAGE> 26
(A) annually within 120 days after the end of each fiscal year,
audited consolidated financial statements of the Parent and
its consolidated subsidiaries prepared in accordance with GAAP
for such fiscal year;
(B) quarterly within 60 days after the end of the first three
fiscal quarters of any fiscal year, unaudited consolidated
financial statements of the Parent and its consolidated
subsidiaries prepared in accordance with GAAP for such fiscal
quarter; and
(C) such other information as the Program Administrator or the
Purchaser may reasonably request and which is reasonably
available;
it being understood that, in the case of (A) and (B) above, such documents shall
be deemed to be furnished upon notice being given by the Parent to the Program
Administrator that such documents have been filed in the SEC's EDGAR system;
(f) subject to its fiduciary obligations to the Funds, not
initiate or propose the adoption by any Fund of a Liquidation Plan, and
use its best efforts to cause the board of directors or trustees and
shareholders of each Fund to avoid adopting any Liquidation Plan, and in
any event the Parent shall promptly notify the Program Administrator of
any proposed Liquidation Plan by any Fund;
(g) not permit any change in Control of the Parent, the
Distributor or the Advisor unless either:
(1) in connection with such change in Control:
(i) either (A) the Distributor or Advisor shall remain
distributor or advisor, as the case may be, for the Funds and the
Parent shall remain the parent of each of the foregoing or (B) if
another Person shall be retained to replace any of the foregoing to
act as distributor, or investment advisor, as the case may be, for
the Funds, or as parent, such Person shall (x) meet the requirements
of clause (iii) of this Section 5.02 (g)(1) below with reference to
the expertise, experience and capacity applicable to the function it
undertakes to perform and (y) have agreed in writing, in respect of
periods from and after its retention, to be bound by the
undertakings of the Distributor, the Advisor or the Parent, as the
case may be, under the Program Documents and shall have confirmed as
of a current date the representations and warranties of the
Distributor, the Advisor or the Parent, as the case may be, except
such representations and warranties as expressly relate solely to an
earlier date (in which case such representations and warranties
shall have been true and correct as of such earlier date);
(ii) in the case where another Person is retained to replace
the Distributor or the Advisor to act as distributor or investment
advisor, as the case may be, for the Funds, ownership of at least
51% of the voting securities of each of the Persons serving as the
distributor, or investment advisor to the Funds is retained by, or
transferred to, a single Person (the "IMMEDIATE PARENT");
22
<PAGE> 27
(iii) in the case where another Person is retained to replace
the Distributor, Advisor or the Parent to act as distributor or
investment advisor for the Funds or as parent, as the case may be,
in the reasonable opinion of the Parent, the Immediate Parent,
together with its affiliated subsidiaries (including the Immediate
Parent and the Persons then serving as distributor and investment
advisor to the Funds) in the aggregate, have financial resources and
mutual fund management, distribution and investment advisory
expertise, experience and capacity immediately after the change in
Control sufficient to satisfy the obligations of their counterparts
under the Program Documents; and
(iv) in the case where another Person is retained to replace
the Distributor or the Advisor to act as distributor or investment
advisor, as the case may be, for the Funds, a majority of the board
of directors or trustees of the Funds, including a majority who are
not "Interested Persons" (as defined by Section 2(a)(19) of the
Investment Company Act), shall have either (i) reapproved the
Distributor's Contracts and any advisory contracts, or (ii) approved
substitute agreements substantially identical thereto; or
(2) the Program Administrator shall have consented to such change
in Control, such consent not to be unreasonably withheld;
(h) ensure that each Transfer Agent's tracking capabilities and/or
the Distributor's tracking capabilities for each Fund is sufficient to:
(i) track the Portfolio Assets and provide the information specified to be
in the Investor Reports or used in the Program Allocation Procedures and
(ii) identify and remit Program Collections and Related Collections to the
Collection Agent, and the Parent shall use its best efforts to replace any
Transfer Agent which does not maintain such capabilities or in respect of
which an event similar to those described in clause (e) of the definition
of Event of Termination occurs within 60 days after becoming aware of such
event; and
(i) subject to its fiduciary obligations to the Funds, use its
best efforts, to obtain prior to October 30, 1998, from the board of
trustees of each of the Funds such indication as the Parent deems
satisfactory, that such boards of trustees have no objection to the
ongoing Purchases as contemplated by the Purchase Agreement.
Section 5.03. ADDITIONAL COVENANTS OF THE DISTRIBUTOR. The
Distributor covenants and agrees that it shall:
(a) not reflect the Purchased Portfolio Assets as being owned by
the Distributor or any Affiliate of the Distributor (except to the extent
such treatment is required by GAAP and all appropriate financial
statements are footnoted to reflect the sale thereof to the Purchaser);
(b) promptly upon preparation, deliver (which delivery shall be
deemed to have occurred upon written notice being given by the Distributor
to the Program Administrator that such documents have been filed in the
SEC's EDGAR system) to the
23
<PAGE> 28
Program Administrator, copies of the semi-annual unaudited reports and
annual audited reports of each Company;
(c) subject to its fiduciary obligations to the Funds, use its best
efforts, which are commercially reasonable in relation to the consequences
to the Purchaser if they are not successful, to obtain the approval of the
board of trustees of each Company in respect of each Fund to: (a) annually
re-approve the Distribution Plan, the Advisory Agreements and the
Distributor's Contract relating to each Fund without change (whether or
not such change is permitted by the terms thereof) in the amount of
computation of the Asset Based Sales Charge or Contingent Deferred Sales
Charge payable thereunder and (b) in the event any of the foregoing shall
be terminated with respect to any Fund, to approve a new distribution
plan, advisory agreement and distributor's contract, in respect of such
Fund so as to permit the continued payments in respect of the Purchased
Portfolio Assets relating to such Fund without change (whether or not such
change is permitted by the terms thereof) in the amount of computation of
the Asset Based Sales Charge or Contingent Deferred Sales Charge payable
thereunder as though no such termination had occurred. In the event that
as a consequence of its fiduciary obligations to the Funds, it cannot
endeavor to obtain the approval of the board of directors or trustees of a
Company in respect of a Fund to take the actions described in clauses (a)
and (b) above, or in the event that despite its efforts such action will
not be taken, it shall, prior to taking any action inconsistent with the
actions described in clauses (a) and (b) above, or failing to take any
action it could otherwise take, or to any termination referred to in
clause (b) above: (i) notify the Purchaser and the Program Administrator
in writing of the nature of such failure or inability or termination and
(ii) if applicable, provide certification by a Responsible Officer that
such failure or inability is required in order to comply with such
fiduciary obligations;
(d) provide prompt written notice to the Program Administrator of
any action by its board of directors or, to the extent the same becomes
known to it, the board of directors or trustees of any Company in respect
of any Fund to make any modification (including any modification which
affects the amount of its Asset Based Sales Charge or Contingent Deferred
Sales Charge whether or not such modification is permitted by the terms
thereof), amendment or supplement to, or any waiver of any provisions of,
or any termination, of any Distribution Plan, any Distributor's Contract
any Advisory Agreement, any Conversion Feature, any Redemption Feature,
any Contingent Deferred Sales Charge arrangement, or any Fundamental
Investment Objectives and Policies of any Company in respect of any Fund,
or any modification, amendment, supplement or waiver in the amounts
payable or actually being paid thereunder, each as in effect on the date
of that agreement, to the extent that any such modification, amendment,
supplement or waiver could reasonably be expected to give rise to an
Adverse Effect;
(e) not use any trade names or assumed names other than Pioneer
Funds Distributor, Inc., unless and until it has notified the Program
Administrator and the Purchaser has amended all filings made under the UCC
in all applicable jurisdictions in connection with the transactions
contemplated hereby to reflect such change and has taken such other action
as the Program Administrator may reasonably request in connection
therewith to avoid any Adverse Effect;
24
<PAGE> 29
(f) keep each Irrevocable Payment Instruction in full force and
effect; and not amend, waive, terminate or otherwise modify the terms of
the Irrevocable Payment Instruction or take any action inconsistent with
the Irrevocable Payment Instruction;
(g) not move its chief executive office or the place where it keeps
its records concerning the Purchased Portfolio Assets from the offices
specified in Section 4.03(k), unless (a) it shall have given to the
Program Administrator not less than twenty (20) days prior written notice
of its intention to do so, clearly describing the new location and (b) it
shall have taken such action as is reasonably requested by the Program
Administrator and the Purchaser to maintain the title or ownership of the
Purchaser in the Purchased Portfolio Assets at all times fully perfected
and in full force and effect; and
(h) arrange for representative members of the trustees of each of
the Funds to meet with the Program Administrator and representatives of
the rating agencies as contemplated in Section 3.03(m).
Section 5.04. ADDITIONAL COVENANTS OF THE ADVISOR. The Advisor
covenants and agrees that it shall:
(a) except for such noncompliance as could not reasonably be
expected to give rise to an Adverse Effect, manage each Fund in accordance
with the Fundamental Investment Objectives and Policies in respect of such
Fund as in effect from time to time;
(b) subject to its fiduciary obligations to the Funds, use its best
efforts, which are commercially reasonable in relation to the consequence
to the Purchaser if they are not successful, to maintain the Fundamental
Investment Objectives and Policies in respect of any Fund as reflected in
the Prospectus of such Fund as in effect on the date hereof, except for
changes approved by: (i) the board of directors or trustees of such Fund
and (ii) shareholders of such Fund; and prior to taking any action
inconsistent with the maintenance of such Fundamental Investment
Objectives and Policies notify the Purchaser and the Program Administrator
in writing of the nature of such change;
(c) use its best efforts to cause each Company to comply with all
Applicable Law, except for such noncompliance as could not reasonably be
expected to give rise to an Adverse Effect;
(d) subject to its fiduciary obligations to the Funds, use its best
efforts, which are commercially reasonable in relation to the consequences
to the Purchaser if they are not successful, to obtain the approval of the
board of trustees of each Company in respect of each Fund to: (a) annually
re-approve the Distribution Plan, the Advisory Agreements and the
Distributor's Contract relating to each Fund without change (whether or
not such change is permitted by the
25
<PAGE> 30
terms thereof) in the amount of computation of the Asset Based Sales
Charge or Contingent Deferred Sales Charge payable thereunder and (b) in
the event any of the foregoing shall be terminated with respect to any
Fund, to approve a new distribution plan, advisory agreement and
distributor's contract, in respect of such Fund so as to permit the
continued payments in respect of the Purchased Portfolio Assets relating
to such Fund without change (whether or not such change is permitted by
the terms thereof) in the amount of computation of the Asset Based Sales
Charge or Contingent Deferred Sales Charge payable thereunder as though no
such termination had occurred. In the event that as a consequence of its
fiduciary obligations to the Funds, it cannot endeavor to obtain the
approval of the board of directors or trustees of a Company in respect of
a Fund to take the actions described in clauses (a) and (b) above, or in
the event that despite its efforts such action will not be taken, it
shall, prior to taking any action inconsistent with the actions described
in clauses (a) and (b) above, or failing to take any action it could
otherwise take, or to any termination referred to in clause (b) above: (i)
notify the Purchaser and the Program Administrator in writing of the
nature of such failure or inability or termination and (ii) if applicable,
provide certification by a Responsible Officer that such failure or
inability is required in order to comply with such fiduciary obligations;
(e) provide prompt written notice to the Purchaser and the Program
Administrator of any action by its board of directors, the board of
directors of the Advisor or the board of directors or trustees of any
Company in respect of any Fund to make any modification (including any
modification which affects the amount of the Asset Based Sales Charge or
Contingent Deferred Sales Charge whether or not such modification is
permitted by the terms thereof), amendment or supplement to, or any waiver
of any provisions of, or any termination, of any Distribution Plan, any
Distributor's Contract, any Advisory Agreement, any Conversion Feature,
any Redemption Feature, any Contingent Deferred Sales Charge arrangement,
any Fundamental Investment Objectives and Policies of any Company in
respect of any Fund, or any modification, amendment, supplement or waiver
in the amounts payable or actually being paid thereunder, each as in
effect on the date of that agreement, to the extent that any such
modification, amendment, supplement or waiver could reasonably be expected
to give rise to an Adverse Effect;
(f) subject to its fiduciary obligations, if any, to the Funds, not
initiate or propose the adoption by any Fund of a Liquidation Plan, and
use its best efforts to cause the board of directors or trustees and
shareholders of each Fund to avoid adopting any Liquidation Plan, and in
any event the Advisor shall promptly notify the Program Administrator of
any proposed Liquidation Plan by any Fund; and
(g) deliver (which delivery, in the case of normal quarterly SEC
filings and all other filings of which the Parent shall have notified the
Program Administrator in writing, shall be deemed to have occurred upon
the filing of such documents, if applicable, in the SEC's EDGAR system) to
the Program Administrator, promptly after the filing thereof with the SEC,
any report on Form N-SAR (or successor form), any Prospectus (including
any Form N-1A (or successor form) and any statement of additional
information) or any amendment or supplement to any of the foregoing, any
proxy statements and all other notices (out of the ordinary course) to
shareholders of each Fund, annual reports of each Company and any other
filings (out of the ordinary course), made by any Company in respect of
each Fund.
26
<PAGE> 31
Section 5.05. ADDITIONAL COVENANTS OF THE PURCHASER AND THE PROGRAM
ADMINISTRATOR. Each of the Purchaser and the Program Administrator covenants and
agrees that it shall:
(a) promptly notify the Distributor if it obtains Actual Knowledge
of any event which could reasonably be expected to render the Purchaser
unable to fund future purchases in accordance with this Agreement;
(b) duly fulfill all obligations on its part to be performed under
or in connection with the other Program Documents to which it is a party;
(c) (i) preserve and maintain its legal existence and duly observe
and conform to all requirements of Applicable Law relative to it, (ii)
preserve and keep in full force and effect its corporate existence,
rights, privileges and franchises, and maintain records of its resolutions
or similar actions, and (iii) obtain, maintain and keep in full force and
effect all Governmental Authorizations and Private Authorizations which
are necessary or appropriate to its activities, except in each such case
under clauses (i) through (iii) where the failure to so observe, conform
to, preserve, obtain, maintain or keep in full force and effect could not
reasonably be expected to have a material adverse effect on its ability to
perform its obligations under the Program Documents; and
(d) to the extent obtained or received by it, furnish or cause to be
furnished to the Distributor a copy of all Private Authorizations and all
Governmental Authorizations required to be obtained by it under clause (c)
above.
ARTICLE VI
THE PROGRAM ADMINISTRATOR
Section 6.01. AUTHORIZATION AND ACTION. The Purchaser hereby
irrevocably appoints and authorizes the Program Administrator to take such
action as agent on its behalf and to exercise such powers the Purchaser may have
under this Agreement, and the other Program Documents as are delegated to the
Program Administrator by the terms hereof and thereof, together with such powers
as are reasonably incidental thereto. As to any matters not expressly provided
for by this Agreement or the other Program Documents, the Program Administrator
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Purchaser;
PROVIDED, HOWEVER, that the Program Administrator shall not be required to take
any action which exposes the Program Administrator to personal liability or
which is contrary to this Agreement, the other Program Documents or Applicable
Law.
Section 6.02. PROGRAM ADMINISTRATOR RELIANCE, ETC. Neither the
Program Administrator nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement or any of the other Program Documents,
except in the case of the Program Administrator for its gross negligence,
willful misconduct or breach of its obligations under the Program Documents.
27
<PAGE> 32
Without limiting the generality of the foregoing, the Program Administrator: (i)
may consult with legal counsel (including counsel for the Parent, the
Distributor, the Advisor or any Transfer Agent), independent public accountants
and experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (ii) makes no warranty or representation to any
of the other parties to this Agreement and shall not be responsible to any of
the other parties to this Agreement for any statements, warranties or
representations (whether written or oral) made by any of the other parties to
this Agreement (including the Purchaser) in or in connection with this Agreement
or the other Program Documents; (iii) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement or the other Program Documents on the part of any
of the other parties to this Agreement or to inspect the property (including the
books and records) of any of the other parties to this Agreement; (iv) shall not
be responsible for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, the other Program Documents
or any other instrument or document furnished pursuant hereto or thereto in
respect of any Person other than the Program Administrator; and (v) shall incur
no liability under or in respect of this Agreement or any other Program Document
by acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
Section 6.03. RIGHTS OF THE PROGRAM ADMINISTRATOR. Each Sponsor
Entity hereby agrees that the Program Administrator is hereby authorized to (i)
upon the occurrence of any Event of Termination (or event which with the passage
of time or notice, or both, would constitute an Event of Termination) which
relates to the Parent, the Distributor, the Advisor or any other Sponsor Entity,
or (ii) at any time that the Program Administrator in its reasonable discretion
believes that the event contemplated in clauses (e), (f) or (h) of the
definition of Event of Termination could occur in respect of the Parent, the
Distributor, the Advisor or any other Sponsor Entity, deliver an Allocation
Notice to the Collection Agent.
ARTICLE VII
PARENT UNDERTAKINGS
Section 7.01. UNDERTAKINGS; PAYMENT OF DAMAGES. The Parent hereby
irrevocably and unconditionally agrees and guarantees for the benefit of the
Purchaser, the Program Administrator, and each Indemnified Party to cause the
Advisor, the Distributor (as Distributor and Program Servicer Agent) and each
other Sponsor Entity to perform and punctually and completely carry out each and
every agreement, covenant or undertaking of the Advisor, the Distributor (as
Distributor and Program Servicer Agent) and each other Sponsor Entity under this
Agreement and each other Program Document in accordance with the terms thereof,
notwithstanding that the Advisor, the Distributor (as Distributor or Program
Servicer Agent), or other Sponsor Entity fails to fully perform any such
agreements, covenants and undertakings for any reason, including liquidation,
insolvency, dissolution, receivership, bankruptcy, assignment for the benefit of
creditors, reorganization, composition, adjustment, legal limitations, court
order, disability, incapacity, invalidity, unenforceability, defense, offset or
counterclaim.
28
<PAGE> 33
Section 7.02. AGREEMENT NOT AFFECTED. The Purchaser and the Program
Administrator may proceed to exercise any right or remedy which it might have
pursuant to this Article VII or Applicable Law without regard to any actions or
omissions of the Purchaser, the Program Administrator or any other Person. The
validity of this Article VII shall not be affected by any action or inaction
which may be taken under or in respect of any Program Document. Each of the
Purchaser and the Program Administrator at its option may proceed in the first
instance against the Parent to obtain a remedy under any Program Document in the
amount and in the manner set forth in such Program Document, without being
obliged to resort first to any claim or action against the Advisor, the
Distributor (as Distributor or Program Servicer Agent) or any other Sponsor
Entity.
Section 7.03. WAIVER OF NOTICE; NO OFFSET; NO SUBROGATION. To the
extent permitted by law, the Parent hereby waives any and all notices or demands
to which any other Sponsor Entity may otherwise be entitled in connection with
the pursuit of any remedy hereunder, or under any other Program Document or, to
the extent permitted, under Applicable Law; PROVIDED, that this sentence shall
not constitute a waiver on behalf of the Advisor, the Distributor (as
Distributor or Program Servicer Agent) or any other Sponsor Entity of any notice
or demand to which the Advisor, the Distributor (as Distributor, or Program
Servicer Agent), or any other Sponsor Entity is entitled under the Program
Documents. The obligations of the Parent under this Article VII shall not be
subject to any defense, counterclaim or offset which the Parent, the Advisor,
the Distributor (as Distributor Program Servicer Agent), or any other Person has
or may have against the Purchaser, the Program Administrator, any Indemnified
Party or any other Person, except such defense, counterclaim or offset which is
expressly allowed under this Agreement and the other Program Documents to such
Party and shall not have been previously adjudicated in any prior action against
such Party, but nothing herein shall limit the right of the Parent to pursue any
claim in a separate action.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. NO WAIVER; MODIFICATIONS IN WRITING. No failure or
delay on the part of the Program Administrator or any Purchaser or any
Indemnified Party exercising any right, power or remedy hereunder or under any
other Program Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Program Administrator and the Purchaser,
at law or in equity. No amendment, modification, supplement, termination or
waiver of this Agreement or any other Program Document shall be effective unless
the same shall be in writing and signed by the parties thereto. Any waiver of
any provision of this Agreement, and any consent to any departure by any party
to this Agreement or any other Program Document from the terms of any provision
of this Agreement or any other Program Document, shall be effective only in the
specific instance and for the specific purpose for which given. No notice to or
demand on any party to this Agreement or any other Program Document in any case
shall entitle a Sponsor Entity to any other or further notice or demand in
similar or other circumstances.
29
<PAGE> 34
Section 8.02. PAYMENT. Unless otherwise provided herein, whenever
any payment to be made hereunder or under any other Program Document shall be
due on a non-Business Day, such payment shall be made on the next succeeding
Business Day. All amounts owing and payable to the Purchaser, the Program
Administrator or any Indemnified Party under this Agreement or under any other
Program Document shall be paid in immediately available funds without
counterclaim, setoff, deduction, defense, abatement, suspension or deferment,
but nothing herein shall limit the right of the Parent, the Advisor or the
Distributor to pursue any claim in a separate action. Each of the Parent, and
the Distributor hereby agrees to pay interest on any amounts payable by it under
this Agreement or under any other Program Document, which shall not be paid in
full when due, for the period commencing on the due date thereof until, but not
including, the date the same is paid in full at the Post-Default Rate. For
purposes of calculating the Post-Default Rate interest, any amount received by
or on behalf of the Purchaser, the Program Administrator or any Indemnified
Party after the close of the Fedwire shall be deemed to have been received on
the next succeeding Business Day.
Section 8.03. NOTICES, ETC. (a) All notices, demands, instructions
and other communications required or permitted to be given to or made upon any
party hereto, or to the Purchase Agreement, the Program Servicer Agent
Agreement, or the Program Collection Agency Agreement shall be in writing and
shall be personally delivered or sent by first-class, registered, certified or
express mail, postage prepaid, or by prepaid telegram (with messenger delivery
specified in the case of a telegram), or by telecopier, or by prepaid courier
service. Unless otherwise specified in a notice sent or delivered in accordance
with the foregoing provisions of this Section 8.03, notices, demands,
instructions and other communications in writing shall be given to or made upon
the respective parties hereto or to the Purchase Agreement, the Program Servicer
Agent Agreement, or the Program Collection Agency Agreement at their respective
addresses (or to their respective telecopier numbers) indicated below:
If to the Purchaser:
PLT Finance, L.P.
65 East 55th Street
New York, New York 10022
Attention: Vice President
Facsimile No.: (212) 644-2271
If to the Program Administrator:
Putnam, Lovell, de Guardiola
& Thornton Inc.
65 East 55th Street
New York, New York 10022
Attention: Vice President
Facsimile No.: (212) 644-2271
30
<PAGE> 35
If to the Parent, the Advisor or the Distributor:
c/o The Pioneer Group, Inc.
60 State Street
Boston, Massachusetts 02109
Attention: General Counsel
Facsimile No.: (617) 422-4293
with a copy to
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attention: Joseph P. Barri, Esq,
Facsimile Number: (617) 526-5000
If to the Collection Agent:
Bankers Trust Company
Four Albany Street
New York, New York 10006
Attention: Corporate Trust and
Agency Group-Structured Finance
Facsimile No.: (212) 250-6439
(b) All notices, demands, consents, requests and other
communications to be sent or delivered hereunder or under any other Program
Document shall be deemed to be given or become effective for all purposes of
this Agreement or of such Program Document as follows: (i) when delivered in
person, when given; (ii) when sent by mail, when received by the Person to whom
it is given, unless it is mailed by registered, certified or express mail, in
which case it shall be deemed given or effective on the earlier of the date of
receipt or refusal; and (iii) when sent by telegram, telecopy or other form of
rapid transmission shall be deemed to be given or effective when receipt of such
transmission is acknowledged, electronically or otherwise.
Section 8.04. COSTS AND EXPENSES; INDEMNIFICATION. (a) Regardless of
whether or not any of the transactions contemplated hereby are actually
consummated, the Parent agrees to pay promptly on demand to the other Parties
hereto (other than any other Sponsor Entity) (i) all reasonable out-of-pocket
costs and expenses in connection with the preparation, review, negotiation,
reproduction, execution, delivery, administration and any modification,
amendment and waiver of this Agreement, and the Purchase Agreement, the Program
Servicer Agent Agreement, or the Program Collection Agency Agreement (but not
any costs or expenses incurred in connection with the sale, transfer or
assignment by the Purchaser of any interests in the Purchased Portfolio Assets
other than any transfer or assignment which arises out of or would not have
occurred but for an Event of Termination), (ii) all reasonable out-of-pocket
costs and expenses incurred in connection with the enforcement of, or
preservation of, any rights under this Agreement and the Purchase Agreement, the
Program Servicer Agent Agreement, or the Program Collection Agency Agreement,
(iii) all reasonable actuarial fees, UCC filing fees and
31
<PAGE> 36
Confidential material deleted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omissions.
periodic auditing expenses in connection with the transactions contemplated by
this Agreement and the other Program Documents, and (iv) all reasonable fees and
disbursements of counsel in connection with the foregoing; PROVIDED, HOWEVER, if
the fees and expenses of counsel for the Purchaser and the Program Administrator
described in clause (i) above relating to services rendered on or prior to the
Purchase Date exceed $[ ** ] the Parent will only be responsible for fifty
percent (50%) of such excess.
(b) INDEMNIFICATION. The Parent agrees to indemnify and hold
harmless the Purchaser (and, without duplication, its respective Investors),
each Placement Trust (and, without duplication, its respective Investors), the
Program Administrator, the Collection Agent, the Placement Agent, and each of
their respective Affiliates and the respective officers, directors, employees,
trustees, agents and advisors of, and any Person controlling, any of the
foregoing (each, an "INDEMNIFIED PARTY") from and against any and all damages,
losses, liabilities, expenses, obligations, penalties, actions, suits, judgments
and disbursements of any kind or nature whatsoever (including the reasonable
fees and disbursements of counsel) (collectively the "LIABILITIES") that are
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with (and regardless of whether or not any such
transactions are consummated) any of the transactions contemplated by this
Agreement, the Purchase Agreement, the Program Servicer Agent Agreement, and the
Program Collection Agency Agreement, including without limitation, any one or
more of following:
(i) any failure or alleged (by Persons other than an
Indemnified Party) failure by any Sponsor Entity to perform any of
its obligations, covenants, or agreements contained in any Program
Document to which it is a party promptly and fully;
(ii) any representation or warranty made or deemed made by any
Sponsor Entity contained in any Program Document or in any
certificate, written statement or report delivered by or on behalf
of any such Person in connection herewith or therewith is, or is
alleged (by Persons other than an Indemnified Party) to have been
false or misleading in any respect when made;
(iii) any proceeding by or against any Sponsor Entity seeking
to adjudicate such Person bankrupt or insolvent, or seeking
liquidation, winding up, administration, reorganization,
arrangement, adjustment, protection, relief, or composition of such
Person or the debts of such Person under any law relating to
bankruptcy, insolvency, liquidation, administrative, reorganization
or relief of debtors, or seeking the entry of an order for relief or
the appointment of a receiver, trustee, custodian, administrator,
liquidator, or other similar official for such Person or for a
substantial part of such Person's property, or the adoption by any
Fund of a Liquidation Plan;
(iv) any change in Control of the Parent, the Distributor or
the Advisor which does not meet the requirements set forth in
Section 5.02(h)(1) or (2); and
32
<PAGE> 37
(v) preparation for a defense of, any investigation,
litigation or proceeding arising out of any of the transactions,
events or circumstances described above;
PROVIDED, HOWEVER, that the Parent shall not be required to
indemnify any Indemnified Party in respect of any Liability to the extent such
Liability (A) results directly and primarily from such Indemnified Party's gross
negligence, willful misconduct or violation of Applicable Law, in each case
except to the extent that the same is attributable to, or would not have
occurred but for, one or more of the events or circumstances described in
clauses (i) through (iv) above, or (B) arises out of the Purchased Portfolio
Assets proving to be uncollectible in whole or in part or declining in value
(including such as is attributable to the effect of market forces on the Net
Asset Value of the Funds), except to the extent that such uncollectibility or
decline in value is attributable to, or would not have occurred but for, one or
more of the events or circumstances described in clauses (i) through (iv) above,
or (C) arises out of a subsequent sale or assignment of the Purchased Portfolio
Assets by the Purchaser except to the extent that the same is attributable to,
or would not have accrued but for, one or more of the events or circumstances
described in clauses (i) through (iv) above, or (D) arises from a failure to
comply with Fundamental Investment Objectives of such Fund to the extent that
the Advisor shall have made restitution to the Fund promptly after such failure
in such amount, if any, which has been approved by the board of trustees of such
Fund or (E) constitutes Consequential Damages.
(c) Unless the Parent shall have assumed responsibility for
contesting a Liability as provided in the next sentence, the Indemnified Party
may, but shall have no obligation to, contest, settle or compromise such
Liability. The Parent may pursue, at its sole cost and expense, such lawful
rights as are available at law to contest any Liability asserted against any
Indemnified Party provided: (i) the Parent has assumed responsibility for such
contest and conceded in writing its responsibility to indemnify the Indemnified
Party, in accordance with this Section, for the full amount of such Liability;
(ii) such contest is conducted in a manner which does not result in a Lien on
the Portfolio Assets unless the Parent shall have indemnified the Indemnified
Parties in respect thereof to their reasonable satisfaction and, if the manner
of contest does not defer the obligation to pay the Liability, the Parent shall
pay such Liability when due, subject to the right to recover such Liability if
the contest is successful, (iii) the Parent shall have provided to the
Indemnified Party such undertakings as the Indemnified Party shall reasonably
request, in form and substance satisfactory to the Indemnified Party, whereby
the Parent agrees to hold the Indemnified Party harmless from any and all
liabilities, costs and expenses which may arise as a consequence of such contest
except due to such Indemnified Party's own gross negligence or willful
misconduct; (iv) there is a meritorious basis for such contest; (v) the contest
of such Liability may be conducted in a manner which does not affect the
liability of the Indemnified Party for any liability not indemnified by the
Parent; (vi) the contest of such Liability can be separated from any contest of
any other liability in respect of which the Parent has not indemnified the
Indemnified Party without prejudicing the Indemnified Party's ability to deal
with or otherwise contest such other liability; PROVIDED THAT in the event the
contest of such Liability cannot be so separated, the Indemnified Party shall
not, without the prior written consent of the Parent, which consent shall not be
unreasonably withheld or delayed, effect any settlement of such Liability,
unless the Indemnified Party has waived in writing its right to be indemnified
for such Liability by the Parent; and (vii) the Indemnified
33
<PAGE> 38
Party has not waived its right to indemnification by the Parent in respect of
such Liability. The Parent shall keep the Indemnified Party fully advised on a
current basis concerning any such contest. Without limiting the foregoing, if
such contest involves or could involve a claim or counterclaim for relief by
either party other than for money damages: (A) the Parent shall give the
Indemnified Party reasonable notice of and a reasonable opportunity to be
present in person or by counsel at any proceeding in connection therewith; (B)
the Parent shall give the Indemnified Party notice of any proposed filings or
papers to be served or filed by the Parent in connection with any such
proceedings and a reasonable opportunity to comment upon them; and (C) the
Parent shall promptly supply the Indemnified Party with copies of any filings or
papers served upon the Parent in connection with such proceedings; it being
understood that the Indemnified Party shall bear its own costs incurred in
connection with any participation by the Indemnified Party or its counsel in the
contest as contemplated by this sentence.
(d) Without prejudice to the survival of any other agreement of the
Parent, hereunder, the agreements and obligations of the Parent contained in
this Section 8.04 and of the Parent in Article VII shall survive the termination
of this Agreement.
Section 8.05. TAXES. (a) Any and all payments by any Sponsor Entity,
any Transfer Agent, any Company or any Fund under this Agreement, any
Irrevocable Payment Instrument or any other Program Document shall be made free
and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, EXCLUDING, taxes imposed on the recipient's income, and
franchise taxes imposed on the recipient, by (i) the United States federal
government, (ii) the jurisdiction under the laws of which the recipient is
organized or any political subdivision thereof, (iii) the jurisdiction in which
is located the principal executive office of the recipient or any political
subdivision thereof or (iv) any other jurisdiction which asserts the authority
to impose such tax on the basis of contacts the recipient maintains with such
jurisdiction other than the contacts arising out of the transactions
contemplated hereby (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "TAXES").
If any Sponsor Entity, any Transfer Agent, any Company or any Fund shall be
required by Applicable Law to deduct any Taxes from or in respect of any sum
payable hereunder or under any other Program Document, (i) the sum payable
hereunder or thereunder shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 8.05) the recipient receives an amount equal to
the sum it would have received had no such deductions been made, (ii) such
Sponsor Entity, Transfer Agent, Company or Fund shall make such deductions and
(iii) such Sponsor Entity, Transfer Agent, Company or Fund shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with Applicable Law.
(b) In addition, the Parent agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any transfer of Portfolio Assets from the
Distributor to the Purchaser in connection herewith or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Program Document (hereinafter referred to as "OTHER TAXES").
34
<PAGE> 39
(c) The Parent will indemnify the Program Administrator and the
Purchaser for the full amount of Taxes or Other Taxes (including any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
8.05) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted, so long as there is a reasonable basis for the
assertion of such Taxes or Other Taxes. This indemnification shall be made
within 30 days from the date the Program Administrator or the Purchaser makes
written demand therefor to the Parent; provided that the Parent shall not be
required to indemnify for Taxes or other Taxes the imposition of which the
Program Administrator or the Purchaser shall have had Actual Knowledge and for
which the Program Administrator or the Purchaser shall have not given notice
within 90 days after having obtained such Actual Knowledge. The Purchaser and
the Program Administrator shall endeavor to avoid or reduce any Taxes or Other
Taxes subject to the foregoing indemnity; PROVIDED that they shall not be
required to take any action which, in their sole judgment, may subject them to
any adverse effect.
(d) Within thirty (30) days after the date of any payment of Taxes,
the Parent will furnish to the Purchaser and the Program Administrator the
original or a certified copy of a receipt evidencing payment thereof.
(e) In the event the Parent shall pay a Tax or Other Tax pursuant to
this Section 8.05 and all or a portion of such Tax or Other Tax previously paid
by the Parent is later refunded by the applicable taxing Authority, the
recipient of such refund shall pay to the Parent the portion of such refund
which relates to the amount previously paid by the Parent.
(f) Unless the Parent shall have assumed responsibility for
contesting a Tax or Other Tax described in paragraph (c) of this Section 8.05 as
provided in the next sentence, the Program Administrator and the Purchaser may,
but shall have no obligation to, contest, settle or compromise such Tax or Other
Tax. The Parent may pursue, at its sole cost and expense, such lawful rights as
are available at law to contest any Tax or Other Tax asserted against the
Purchaser or the Program Administrator provided: (i) the Parent has assumed
responsibility for such contest and conceded in writing its responsibility to
indemnify the Purchaser or the Program Administrator, as the case may be, in
accordance with this Section, for the full amount of such Tax or Other Tax; (ii)
such contest is conducted in a manner which does not result in a Lien on the
Portfolio Assets unless the Parent shall have indemnified the Purchaser with
respect thereof in a manner reasonably satisfactory to the Purchaser and, if the
manner of contest does not defer the obligation to pay the Tax or Other Tax, the
Parent shall pay such Tax or Other Tax when due, subject to the right to recover
such Tax or Other Tax if the contest is successful, (iii) to the extent not
covered by Section 8.04(b), the Parent shall have provided to the Purchaser or
the Program Administrator, as the case may be, such undertakings as the
Purchaser or the Program Administrator, as the case may be, shall reasonably
request, in form and substance satisfactory to the Purchaser or the Program
Administrator, as the case may be, whereby the Parent agrees to hold the
Purchaser or the Program Administrator, as the case may be, harmless from any
and all liabilities, costs and expenses which may arise as a consequence of such
contest except due to the Program Administrator's or the Purchaser's own gross
negligence or willful misconduct; (iv) there is a meritorious basis for such
contest; (v) the contest of such Tax or Other Tax may be conducted in a manner
which does not affect the liability of the Purchaser or the Program
Administrator, as the case may be, for any tax not indemnified by the Parent;
(vi) the contest of
35
<PAGE> 40
such Tax or Other Tax can be separated from any contest of any other tax in
respect of which the Parent has not indemnified the Purchaser or the Program
Administrator, as the case may be, without prejudicing the Purchaser's or the
Program Administrator's, as the case may be, ability to deal with or otherwise
contest such other liability; PROVIDED, THAT if the contest of such Tax or Other
Tax can not be so separated, neither the Purchaser nor the Program
Administrator, as the case may be, shall, without the prior written consent of
the Parent, which consent shall not be unreasonably withheld or delayed, effect
any settlement of such Tax or Other Tax, unless the Purchaser or the Program
Administrator, as the case may be, has waived in writing its right to be
indemnified for such Tax or Other Tax by the Parent; and (vii) such Purchaser or
the Program Administrator, as the case may be, has not waived its right to
indemnification by the Parent in respect of such Tax or Other Tax. The Parent
shall keep the Purchaser or the Program Administrator, as the case may be, fully
advised on a current basis concerning any such contest. Without limiting the
foregoing, if such contest involves or could involve a claim or counterclaim for
relief by either party other than for money damages: (A) the Parent shall give
the Purchaser or the Program Administrator, as the case may be, reasonable
notice of and a reasonable opportunity to be present in person or by counsel at
any proceeding in connection therewith; (B) the Parent shall give the Purchaser
or the Program Administrator, as the case may be, notice of any proposed filings
or papers to be served or filed by the Parent in connection with any such
proceedings and a reasonable opportunity to comment upon them; and (C) the
Parent shall promptly supply the Purchaser or the Program Administrator, as the
case may be, with copies of any filings or papers served upon the Parent in
connection with such proceedings; it being understood that the Purchaser or the
Program Administrator, as the case may be, shall bear its own costs incurred in
connection with any participation by the Purchaser or the Program Administrator,
as the case may be, or its counsel in the contest as contemplated by this
sentence.
(g) Without prejudice to the survival of any other agreement of the
Parent, hereunder, the agreements and obligations of the Parent contained in
this Section 8.05 shall survive the termination of this Agreement.
Section 8.06. EXECUTION IN COUNTERPARTS. This Agreement and each
other Program Document may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
agreement.
Section 8.07. BINDING EFFECT; ASSIGNMENT. This Agreement and the
various representation and covenants set forth herein shall be binding upon the
parties hereto and their respective successors and assigns, and inure to the
benefit of the parties hereto and their respective Investors, successors and
assigns. No Sponsor Entity shall assign its rights or obligations hereunder or
under any other Program Document or in connection herewith or therewith or any
interest herein or therein (voluntarily, or by operation of law or otherwise)
without the Program Administrator's and the Purchaser's prior written consent,
except as otherwise expressly permitted hereunder and thereunder. This Agreement
and the Program Administrator's and the Purchaser's rights herein, and in the
Purchased Portfolio Assets, the Program Collections and the Ancillary Rights
with respect thereto shall be assignable, in whole or in part, by the Purchaser
and the Program Administrator and their respective successors and
36
<PAGE> 41
assigns; provided, that no delegation of the Purchaser's or the Program
Administrator's obligations hereunder shall be permitted without prior written
notice to the Sponsor Entities.
Section 8.08. GOVERNING LAW; SUBMISSION TO JURISDICTION. (A) THIS
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF
NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SAID STATE WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
(b) Each of the Advisor, the Parent and the Distributor hereby
irrevocably submits itself to the non-exclusive jurisdiction of the courts of
the State of New York and to the non-exclusive jurisdiction of any Federal Court
of the United States located in the Southern District of New York, for the
purposes of any suit, action or other proceeding arising out of this Agreement,
the Purchase Agreement, the Program Servicer Agent Agreement, or the Program
Collection Agency Agreement or any of the transactions contemplated hereby or
thereby.
Section 8.09. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 8.10. CONFIDENTIALITY. Unless otherwise required by
Applicable Law, the parties hereto agree to maintain the confidentiality of this
Agreement, the Purchase Agreement, the Program Servicer Agent Agreement, or the
Program Collection Agency Agreement (and all drafts hereof and thereof) other
than the Distributor's Contracts, the Distribution Plans and the Prospectuses
and the transactions contemplated thereby, and all information disclosed to such
party by another party and identified by such party as non-public information
pursuant to or in connection with this Agreement, the Purchase Agreement, the
Program Servicer Agent Agreement, or the Program Collection Agency Agreement
which has not become public other than as a result of a breach of this
undertaking (all of the foregoing, the "CONFIDENTIAL INFORMATION"), in
communications with third parties and otherwise; PROVIDED, that Confidential
Information may be disclosed (i) to assignees, participants and potential
assignees and participants of the Purchaser and the Program Administrator
provided that confidentiality arrangements with such third parties are put in
place by the Purchaser or the Program Administrator, (ii) to third parties to
the extent such disclosure is consented to in writing by all parties to this
Agreement, in the case of this Agreement, the Purchase Agreement, the Program
Servicer Agent Agreement, or the Program Collection Agency Agreement, or the
party to which the Confidential Information relates, in the case of other
Confidential Information (which consent shall not be unreasonably withheld) and
such disclosure is made pursuant to a written confidentiality agreement in form
and substance substantially identical to this Section 8.10, (iii) the officers,
partners, directors and employees, legal counsel and internal and external
auditors of the parties hereto, (iv) as the Program Administrator or the
Purchaser may deem necessary or appropriate in connection with any Placement or
its warehouse financing arrangements, provided, that prior to disclosing such
Confidential Information (other than the performance of the Portfolio Assets)
concerning any Sponsor Entity in any offering memorandum in connection with any
Placement, the Program Administrator will give the Sponsor Entity a reasonable
opportunity to comment on such proposed disclosure and will
37
<PAGE> 42
discuss in good faith any reasonable comments of the Sponsor Entity and use
reasonable efforts, consistent with its marketing and business objectives and
Applicable Law, to address such comments in a mutually satisfactory manner, (v)
in connection with any litigation or the protection or enforcement of a party's
rights and remedies under or relating to this Agreement, the Purchase Agreement,
the Program Servicer Agent Agreement, or the Program Collection Agency Agreement
and (vi) in response to a lawful requirement of any Authority exercising
supervisory jurisdiction over the disclosing Party or its Affiliates.
Section 8.11. INTENT OF AGREEMENT. It is the intention of this
Agreement and the Purchase Agreement that the purchase of Purchased Portfolio
Assets under the Purchase Agreement shall convey to the Purchaser an undivided
100% ownership interest in such Purchased Portfolio Assets on the Purchase Date
therefor and that such transaction shall constitute a True Sale and not a
secured loan. If, notwithstanding such intention, any conveyance of Purchased
Portfolio Assets from the Distributor to the Purchaser shall ever be
recharacterized as a secured loan and not a sale, it is the intention of this
Agreement and the Purchase Agreement that such agreements shall constitute
collectively a security agreement under Applicable Law, and that the Distributor
shall be deemed to have granted to the Purchaser, and hereby does so grant, a
duly perfected first priority security interest in all of the Distributor's
right, title and interest in, to and under such Purchased Portfolio Assets free
and clear of any Adverse Claim.
Section 8.12. CONTINUING OBLIGATIONS. Notwithstanding any other
provision of this Agreement or the other Program Documents, to the extent that
any obligation of the Sponsor Entities under the Program Documents, pursuant to
and in connection with the Purchased Portfolio Assets remains unperformed or
executory, the Sponsor Entities shall be obligated to perform such obligation to
the same extent as if the purchase and sale contemplated hereby had not taken
place, and the Purchaser and the Program Administrator shall not be required or
obligated in any manner to perform or fulfill any of the obligations of the
Sponsor Entities under, pursuant to or in connection with any Purchased
Portfolio Assets.
Section 8.13. MERGER. This Agreement, the Purchase Agreement, the
Program Servicer Agent Agreement and the Program Collection Agency Agreement
taken as a whole incorporate the entire agreement between the parties thereto
concerning the subject matter thereof. This Agreement, the Purchase Agreement,
the Program Servicer Agent Agreement and the Program Collection Agency Agreement
supersede any prior agreements among the parties relating to the subject matter
thereof.
Section 8.14. FURTHER ACTS. Each party agrees that at any time, and
from time to time, it will do all such things and execute and deliver all such
instruments, assignments, other documents and assurances, as such other party or
its counsel reasonably deems necessary or desirable in order to carry out the
express intent, purpose and conditions of this Agreement, the Purchase
Agreement, the Program Servicer Agent Agreement and the Program Collection
Agency Agreement and the transactions contemplated hereby and thereby, and
without limiting the generality of the foregoing, to the extent permitted by
Applicable Law, upon the Program Administrator's written request from time to
time, the Parent, the Distributor (as Distributor and as Program Servicer Agent)
and the Advisor shall make, execute, acknowledge and deliver and file and record
in the proper filing and recording places all such instruments, and take all
such
38
<PAGE> 43
actions, as the Program Administrator may reasonably deem necessary or advisable
for assuring or confirming to the Purchaser its rights and interest in and to,
and remedies in respect of, the Purchased Portfolio Assets. In addition, the
Advisor, the Distributor (as Distributor and as Program Servicer Agent) and the
Parent, agree to do all things and execute and deliver all instruments,
assignments, other documents and assurances, as the Program Administrator or its
counsel reasonably deems necessary to permit the Purchaser to convey any portion
of its right, title and interest in the Purchased Portfolio Assets and the
Program Documents in connection with any assignment by such Purchaser permitted
by this Agreement, the Purchase Agreement, the Program Servicer Agent Agreement
and the Program Collection Agency Agreement.
Section 8.15. SPECIFIC PERFORMANCE; OTHER RIGHTS AND REMEDIES. The
parties hereto recognize that certain of their rights under this Agreement and
the other Program Documents are unique and, accordingly, the parties hereto
shall, in addition to such other remedies as may be available to any of them at
law or in equity or under this Agreement and the other Program Documents, have
the right to enforce their rights hereunder and thereunder by actions for
injunctive permitted relief and specific performance to the extent permitted by
Applicable Law. The rights and remedies of the Program Administrator and the
Purchaser under this Agreement and the other Program Documents are cumulative
and are not in lieu of, but are in addition to, any other rights and remedies
which the Program Administrator and the Purchaser may have under or by virtue of
any Applicable Law, or in equity, or any other agreement or obligations to which
the Program Administrator and the Purchaser are parties. The rights and remedies
of the Program Administrator and the Purchaser under this Agreement and the
other Program Documents may be exercised from time to time and as often as such
exercise is deemed expedient. Without limiting the generality of the foregoing,
the Distributor acknowledges and agrees that it will be impossible to measure in
money the damage to the Program Administrator or the Purchaser in the event of a
breach of any of the terms and provisions of this Agreement or any other Program
Document, and that, in the event of any such breach, the Program Administrator
and the Purchaser may not have an adequate remedy at law, although the foregoing
shall not constitute a waiver of any of the Program Administrator's or the
Purchaser's rights, powers, privileges and remedies against or in respect of a
breaching party, any collateral or any other Person or thing under this
Agreement, any other Program Document or Applicable Law. It is therefore agreed
that each of the Program Administrator and the Purchaser, in addition to all
other such rights, powers, privileges and remedies that it may have, shall be
entitled to injunctive relief, specific performance or such other equitable
relief as it may request to exercise or otherwise enforce any of the terms of
those provisions and to enjoin or otherwise restrain any act prohibited thereby,
and the Distributor shall not argue and hereby waives any defense that there is
an adequate remedy available at law.
Section 8.16. NO PROCEEDINGS. Each Party agrees that it will not
institute against the Purchaser, or join any other Person in instituting against
the Purchaser, any insolvency proceeding (including any proceeding of the type
described in clause (e) of the definition of Event of Termination). The
foregoing shall not limit the right of any Party to file any claim in or
otherwise take any action in any insolvency proceeding that was instituted
against the Purchaser by any other Person.
Section 8.17. ADDITIONAL COMPANIES AND FUNDS. Unless an Event of
Termination (or an event which, with the passage of time or notice, or both,
would constitute an Event of
39
<PAGE> 44
Termination) shall have occurred and be continuing, the Distributor may request
that an additional Eligible Fund become a "Fund" (and in connection therewith
any investment company, which is registered with the SEC under the Investment
Company Act, of which such Eligible Fund is a series, to become a Company) under
this Agreement on the Addition Effective Date in respect of such additional
Eligible Fund. On and as of such Addition Effective Date in respect of any
additional Eligible Fund, (i) such additional Eligible Fund shall become a Fund
hereunder and any investment company, which is registered with the SEC under the
Investment Company Act, of which such Fund is a series, shall become a Company
hereunder, (ii) this Agreement and the Purchase Agreement (including Schedule I
to the Master Agreement and Schedule I to the Purchase Agreement) shall be
deemed to be supplemented to reflect such addition, and (iii) any reference in
this Agreement to any change or modification since the date of this Agreement or
the Closing Date to the distributor's contract, distribution plan, advisory
agreement, prospectus or contingent deferred sales charge arrangement in respect
of such additional Eligible Fund shall be deemed to refer to any change or
modification thereof since such Addition Effective Date.
The term "ADDITION EFFECTIVE DATE" shall mean with respect to any
additional Eligible Fund, the first date on which all of the following
conditions shall have been satisfied:
(i) the Program Administrator shall have received a fully executed
Additional Eligible Fund Addendum, together with such signed opinions of
counsel to the applicable Company, the Distributor, the Advisor, and the
Parent, each dated a date reasonably near the Addition Effective Date, as
the Program Administrator shall have reasonably requested, all in form,
scope and substance satisfactory to the Program Administrator;
(ii) the Program Administrator shall have received such
instruments, certificates and documents regarding the addition of such
additional Eligible Fund from the Distributor, the Advisor, the Parent,
and the applicable Company as the Program Administrator shall reasonably
request; and
(iii) the Program Administrator shall have received evidence
satisfactory to it that (a) the conditions in respect of such additional
Eligible Fund set forth in Section 3.02 immediately after the Addition
Effective Date shall be satisfied, and (b) that on such Addition Effective
Date the Portfolio Assets relating to such additional Eligible Fund shall
constitute Eligible Portfolio Assets.
40
<PAGE> 45
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE PIONEER GROUP, INC.,
as Parent
By: /s/ John F. Cogan
------------------------------
Name: John F. Cogan
Title: President
PIONEERING MANAGEMENT CORPORATION,
as Advisor
By: /s/ David D. Tripple
------------------------------
Name: David D. Tripple
Title: President
PIONEER FUNDS DISTRIBUTOR, INC.,
as Distributor and Program Servicer Agent
By: /s/ Robert L. Butler
------------------------------
Name: Robert L. Butler
Title: President
41
<PAGE> 46
PLT FINANCE, L.P.,
as Purchaser
By: PLT Finance, Inc.,
General Partner
By: /s/ Robert T. Fleisher
------------------------------
Name: Robert T. Fleisher
Title: Vice President
PUTNAM, LOVELL, DE GUARDIOLA &
THORNTON INC.,
as Program Administrator
By: /s/ Michael R. Llodra
------------------------------
Name: Michael R. Llodra
Title: Vice President
42
<PAGE> 47
BANKERS TRUST COMPANY,
not in its individual capacity but solely as
Collection Agent
By: /s/ Louis Bodi
------------------------------
Name: Louis Bodi
Title: Vice President
43
<PAGE> 48
Schedule I To
Pioneer Program
Master Agreement
COMPANIES, FUNDS, SHARES AND RELATED MATTERS
COMPANIES AND FUNDS: SHARES
- -------------------- ------
Pioneer America Income Trust Class B
Pioneer Balanced Fund Class B
Pioneer Bond Fund Class B
Pioneer Capital Growth Fund Class B
Pioneer Cash Reserves Fund Class B
Pioneer Emerging Markets Fund Class B
Pioneer Equity-Income Fund Class B
Pioneer Europe Fund Class B
Pioneer Fund Class B
Pioneer Gold Shares Class B
Pioneer Growth Shares Class B
Pioneer Indo-Asia Fund Class B
Pioneer Intermediate Tax-Free Fund Class B
Pioneer International Growth Fund Class B
Pioneer Micro-Cap Fund Class B
Pioneer Mid-Cap Fund Class B
Pioneer Real Estate Shares Class B
Pioneer Short-Term Income Trust Class B
Pioneer Small Company Fund Class B
Pioneer Tax-Free Income Fund Class B
Pioneer II Class B
Pioneer World Equity Fund Class B
I-1
<PAGE> 49
Schedule II To
Pioneer Program
Master Agreement
PROGRAM ALLOCATION PROCEDURES
Program Collections in respect of Portfolio Assets which constitute
Contingent Deferred Sales Charges, and Asset Based Sales Charges related to
Shares of each Fund shall be allocated by the Program Administrator among the
Purchaser and the Distributor in accordance with this Schedule II.
Defined terms used in this Schedule II and not otherwise defined
herein shall have the meaning assigned to them in Schedule X to the Master
Agreement. As used herein the following terms shall have the meanings indicated:
"COMMISSION SHARE" means in respect of any Fund, each Share of such
Fund, which is issued under circumstances which would normally give rise to an
obligation of the holder of such Share to pay a Contingent Deferred Sales Charge
upon redemption of such Share (including, without limitation, any Share of such
Fund issued in connection with a Permitted Free Exchange) and any such Share
shall continue to be a Commission Share of such Fund prior to the redemption
(including a redemption in connection with a Permitted Free Exchange) or
conversion of such Share, even though the obligation to pay the Contingent
Deferred Sales Charge may have expired or conditions for waivers thereof may
exist.
"DATE OF ORIGINAL ISSUANCE" means in respect of any Commission
Share, the date with reference to which the amount of the Contingent Deferred
Sales Charge payable on redemption thereof, if any, is computed.
"FREE SHARE" means, in respect of any Fund, each Share of such Fund,
other than a Commission Share or Omnibus Share (including, without limitation,
any Share issued in connection with the reinvestment of dividends or capital
gains).
"INCEPTION DATE" means in respect of any Fund, the first date on
which such Fund issued Shares.
"NET ASSET VALUE" means, (i) with respect to any Fund, as of the
date any determination thereof is made, the net asset value of such Fund
computed in the manner such value is required to be computed by such Fund in its
reports to its shareholders, and (ii) with respect to any Share of such Fund as
of any date, the quotient obtained by dividing: (A) the net asset value of such
Fund (as computed in accordance with clause (i) above) allocated to Shares of
such Fund (in accordance with the constituent documents for such Fund) as of
such date, by (B) the number of Shares of such Fund outstanding on such date.
"OMNIBUS SHARE" means, in respect of any Fund, a commission share
sold by one of the Selling Agents listed on Exhibit A or related free share
issued in connection with the reinvestment of
II-1
<PAGE> 50
dividends or capital gains for such share. If, subsequent to closing of the
Program, the Program Administrator reasonably determines that the Program
Servicer Agent is able provide information to track all commission shares sold
by any of the Selling Agents listed on Exhibit A (and related free shares in the
same manner as Commission Shares and Free Shares are currently tracked in
respect of Selling Agents not listed on Exhibit A, then Exhibit A shall be
amended to delete such Selling Agent from Exhibit A so that commission shares
sold by such Selling Agent (and related free shares) will thereafter be treated
as Commission Shares and Free Shares.
PART I: ATTRIBUTION OF SHARES
Shares of each Fund, which are outstanding from time to time, shall
be attributed to the Purchaser and the Distributor in accordance with the
following rules;
(1) COMMISSION SHARES:
(a) Commission Shares attributed to the Purchaser shall be
Commission Shares the Date of Original Issuance of which occurred on or after
the Inception Date of such Fund and on or prior to the last Purchase Cut-Off
Date occurring prior to the date of such determination.
(b) Commission Shares attributable to the Distributor shall be
Commission Shares, the Date of Original Issuance of which occurs after the last
Purchase Cut-Off Date occurring prior to the date of such determination.
(c) A Commission Share of a particular Fund (the "ISSUING Fund")
issued in consideration of the investment of proceeds of the redemption of a
Commission Share of another Fund (the "REDEEMING FUND") in connection with a
Permitted Free Exchange, is deemed to have a Date of Original Issuance identical
to the Date of Original Issuance of the Commission Share of the Redeeming Fund
and any such Commission Share will be attributed to the Purchaser or the
Distributor based upon such Date of Original Issuance in accordance with rules
(a) and (b) above.
(d) A Commission Share redeemed (other than in connection with a
Permitted Free Exchange) or converted to a Class A share is attributable to the
Purchaser or Distributor based upon the Date of Original Issuance in accordance
with rule (a), (b) and (c) above.
(2) FREE SHARES:
Free Shares of a Fund outstanding on any date shall be attributed to
the Purchaser or Distributor, as the case may be, in the same proportion that
the Commission Shares of such Fund outstanding on such date are attributed to it
on such date; PROVIDED that if the Program Administrator reasonably determines
that the Transfer Agent is able to produce monthly reports which track the Date
of Original Issuance for the Free Shares, then the Free Shares shall be
allocated pursuant to clause 1(a), (b) and (c) above.
II-2
<PAGE> 51
(3) OMNIBUS SHARES:
Omnibus Shares of a Fund outstanding on any date shall be attributed
to the Purchaser or Distributor, as the case may be, in the same proportion that
the Commission Shares of such Fund outstanding on such date are attributed to it
on such date; PROVIDED that if the Program Administrator reasonably determines
that the Transfer Agent is able to produce monthly reports which track the Date
of Original Issuance for the Omnibus Shares, then the Omnibus Shares shall be
allocated pursuant to clause 1(a), (b) and (c) above.
PART II: ALLOCATION OF CONTINGENT DEFERRED SALES CHARGES ("CDSCS")
(1) CDSCS RELATED TO THE REDEMPTION OF COMMISSION SHARES:
CDSCs in respect of the redemption of Commission Shares shall be
allocated to the Purchaser or Distributor depending upon whether the related
redeemed Commission Share is attributable to the Purchaser or Distributor, as
the case may be, in accordance with Part I above.
(2) CDSCS RELATED TO THE REDEMPTION OF OMNIBUS SHARES:
CDSCs in respect of the redemption of Omnibus Shares shall be
allocated to the Purchaser or Distributor shall be attributed to the Purchaser
or Distributor, as the case may be, in the same proportion that the CDSCs
Related to the Redemption of Commission Shares are attributed to it on such
date; PROVIDED that if the Program Administrator reasonably determines that the
Transfer Agent is able to produce monthly reports which track the Date of
Original Issuance for the redeemed Omnibus Shares, then the CDSCs Related to the
Redemption of Omnibus Shares shall be allocated pursuant to clause 1 above.
PART III: ALLOCATION OF ASSET BASED SALES CHARGES
Assuming that the Asset Based Sales Charge remains constant over
time and among Funds so that Part VI hereof does not become operative:
(1) The portion of the aggregate Asset Based Sales Charges accrued
in respect of all Shares of all Funds during any calendar month allocable to the
Purchaser or Distributor is determined by multiplying the total of such Asset
Based Sales Charges by the following fraction:
(A + C)/2
---------
(B + D)/2
where:
II-3
<PAGE> 52
A = The aggregate Net Asset Value of all Shares of all Funds
attributed to the Purchaser or the Distributor, as the case may be,
and outstanding at the beginning of such calendar month
B = The aggregate Net Asset Value of all Shares of all Funds at the
beginning of such calendar month
C = The aggregate Net Asset Value of all Shares of all Funds
attributed to the Purchaser or the Distributor, as the case may be,
and outstanding at the end of such calendar month
D = The aggregate Net Asset Value of all Shares of all Funds at the
end of such calendar month
(2) If the Program Administrator reasonably determines that the
Transfer Agent is able to produce automated monthly reports which allocate the
average Net Asset Value of the Commission Shares (or all Shares if available) of
all Funds among the Purchaser and Distributor in a manner consistent with the
methodology detailed in Part I and Part III(1) above, the portion of the Asset
Based Sales Charges accrued in respect of all such Shares of all Funds during a
particular calendar month will be allocated to the Purchaser or the Distributor
by multiplying the total of such Asset Based Sales Charges by the following
fraction:
(A)/(B)
where:
A = Average Net Asset Value of all such Shares of all Funds for such
calendar month attributed to the Purchaser or the Distributor, as
the case may be
B = Total average Net Asset Value of all such Shares of all Funds for
such calendar month
II-4
<PAGE> 53
PART IV: ALLOCATION OF OTHER AMOUNTS (IF ANY)
The allocation of amounts such as expense and indemnity payments
shall be accomplished in the following manner:
1. The Program Administrator will determine whether any such amounts
are intended to (i) be distributed in a manner similar to Program Collections
("RECEIVABLE REIMBURSEMENT PAYMENT"), or (ii) reimburse a particular Person for
specific losses, cost, damages or other expenses other than losses for which a
Receivable Reimbursement Payment is being made ("EXPENSE PAYMENTS").
2. Receivable Reimbursement Payments shall be allocated as nearly as
possible in the same manner as the Collections in respect of the Shares to which
they related would be allocated as provided in Parts I through III of this
Schedule II; PROVIDED, THAT, if any such payment by a particular payor is not
sufficient to replace the full amount required to be replaced by such payment,
such payment shall be allocated to each person to which the amount replaced
would have been allocated as nearly as practicable in the proportion that the
full amount of indemnification required to be made to such indemnitee from such
payor bears to the total amount of indemnification required to be made to all
such indemnitees from such payor.
PART V: ADJUSTMENT OF THE PURCHASER'S PORTION AND THE DISTRIBUTOR'S PORTION
The Parties to the Program Documents recognize that, if the terms of
any Distributor's Contract, any Distribution Plan, any Prospectus, the Conduct
Rules or any other Applicable Law change, which change disproportionately
reduces, in a manner inconsistent with the intent of the Program Documents, the
amount of the Purchaser's Portion or the Distributor's Portion that would have
been payable on any Monthly Settlement Date had no such change occurred, the
definitions of the Purchaser's Portion and/or the Distributor's Portion in
respect of the Shares relating to such Fund shall be adjusted by agreement among
the Purchaser, the Distributor, the Program Administrator and the Funding and
Collection Agent; PROVIDED, HOWEVER, if the Purchaser, the Distributor, the
Program Administrator and the Funding and Collection Agent cannot agree within
thirty (30) days after the date of any such change in Applicable Laws or in any
Distributor's Contract, Distribution Plan, Prospectus or the Conduct Rules, the
Parties shall submit the question to arbitration in accordance with the
commercial arbitration rules of the American Arbitration Association and the
decision reached by the arbitrator shall be final and binding on the Parties
hereto. The Funding and Collection Agent shall be notified promptly in writing
by the Program Administrator of any adjustment in the Purchaser's Portion or the
Distributor's Portion or of any arbitration award pursuant to this Part V.
II-5
<PAGE> 54
Exhibit A to
Schedule II
to the
Pioneer Program
Master Agreement
SELLING AGENTS
Merrill Lynch
II-6
<PAGE> 55
Schedule III To
Pioneer Program
Master Agreement
CONTINGENT DEFERRED SALES CHARGE SCHEDULE
Years from
Fund share Purchase CDSC Rate(1) CDSC Rate(2) CDSC Rate(3)
- ------------------- ------------ ------------ ------------
0-1 2% 3% 4%
1-2 2% 3% 4%
2-3 1% 2% 3%
3-4 0% 1% 3%
4-5 0% 0% 2%
5+ 0% 0% 1%
- --------------------
(1) CDSC Rate applicable to the Pioneer Short-Term Income Trust.
(2) CDSC Rate applicable to the Pioneer Intermediate Tax Free Fund.
(3) CDSC Rate applicable for all other Funds.
III-1
<PAGE> 56
Schedule X To
Pioneer Program
Master Agreement
PIONEER PROGRAM
RULES OF CONSTRUCTION; DEFINITIONS
Section 1.01 RULES OF CONSTRUCTION. For all purposes of the Master
Agreement, the Purchase Agreement, the Program Servicer Agent Agreement and the
Program Collection Agency Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
Singular words shall connote the plural as well as the singular, and
vice versa (except as indicated), as may be appropriate.
Unless otherwise indicated, references within any document to
appendices, articles, schedules, sections, paragraphs, clauses, annexes or
exhibits are references to appendices, articles, schedules, sections,
paragraphs, clauses, annexes or exhibits in or to such document.
The words "herein," "hereof" and "hereunder" and other words of
similar import used in any document refer to such document as a whole and not to
any particular appendix, article, schedule, section, paragraph, clause, exhibit
or other subdivision.
The headings, subheadings and table of contents are solely for
convenience of reference and shall not constitute a part of any such document
nor shall they affect the meaning, construction or effect of any provision
thereof.
References to any Person shall include such Person, its permitted
successors and assigns.
Except as otherwise expressly provided, reference to any agreement
means such agreement, together with all schedules, exhibits, annexes or other
appendices thereto, as amended, modified or supplemented from time to time in
accordance with the applicable provisions thereof and the Master Agreement, the
Purchase Agreement, the Program Servicer Agent Agreement and the Program
Collection Agency Agreement.
Except as otherwise expressly provided, any reference to any
statute, law or regulation shall be deemed to be a reference to such statute,
law, rule or regulation as from time to time in effect, and any successor
statutory or regulatory provision.
References to "including" shall mean including without limiting the
generality of any description preceding such term, and for purposes hereof the
rule of ejusdem generis shall not be applicable to limit a general statement,
followed by or referable to an enumeration of specific matters, to matters
similar to those specifically mentioned.
X-1
<PAGE> 57
Each of the parties to the Master Agreement, the Purchase Agreement,
the Program Servicer Agent Agreement and the Program Collection Agency Agreement
and its counsel have reviewed and revised, or requested revisions to, such
documents, and the usual rule of construction that any ambiguities are to be
resolved against the drafting party shall be inapplicable in the construction
and interpretation of such documents.
Section 1.02 DEFINITIONS. The following terms shall have the
following meanings:
"ACTUAL KNOWLEDGE" means, (i) as it applies to any natural Person,
actual knowledge of such Person, (ii) as it applies to any Person which is a
corporate entity or business trust, actual knowledge of a Responsible Officer of
such Person, and (iii) as it applies to any Person which is a trust entity,
actual knowledge of such trustee determined with reference to all applicable
provisions of this definition.
"ADDITION EFFECTIVE DATE" shall have the meaning assigned to such
term in Section 8.17 of the Master Agreement.
"ADDITIONAL ELIGIBLE FUND ADDENDUM" means the addendum substantially
in the form of Exhibit I to the Master Agreement executed by the Distributor,
the Advisor, the Parent, the Purchaser and the Program Administrator.
"ADVERSE CLAIM" means any Lien of any Person (other than (i) any
such right or claim of the Purchaser or the Program Administrator created by or
pursuant to this Agreement or any other Program Document, and (ii) any Lien
created by the Purchaser).
"ADVERSE EFFECT" means (i) any occurrence of, or any increase in,
any Adverse Claim on the Purchased Portfolio Assets, (ii) any occurrence of, or
any increase in, any material claims, damages, losses, liabilities, expenses,
obligations, penalties or disbursements of any kind or nature of the Purchaser
or the Program Administrator arising out of the transactions contemplated by the
Program Documents, (iii) any adverse effect upon the status of any transfer of
any Purchased Portfolio Assets by the Distributor under the Program Documents as
a True Sale, (iv) any material adverse effect upon the Parent's, the
Distributor's, the Advisor's, any Transfer Agent's or any Company's ability to
pay or perform its respective obligations under any Program Document in a timely
manner, (v) any adverse effect on the status of the Purchased Portfolio Assets
as Eligible Portfolio Assets or on the status of any Fund as an Eligible Fund,
(vi) any adverse effect on the amount or timely receipt by the Collection Agent
of any Program Collections in accordance with the terms of any Irrevocable
Payment Instruction or any other Program Document, (vii) any adverse effect on
the Purchaser's right, title or interest in the Purchased Portfolio Assets, the
Program Collections in respect thereof, the Program Collection Account or the
Ancillary Rights in respect of the Purchased Portfolio Assets, (viii) any
material adverse effect on any of the other rights of the Purchaser or the
Program Administrator under the Program Documents, or (ix) any material adverse
effect on the remedies of the Purchaser or the Program Administrator under any
Program Document.
X-2
<PAGE> 58
"ADVISOR" shall have the meaning assigned to such term in the
preamble to the Master Agreement.
"ADVISORY AGREEMENT" means with respect to any Fund, the agreement
between the Advisor and the related Company in respect of such Fund and any
replacement agreement as may be adopted in the future, pursuant to which the
Advisor provides investment advisory services to such Fund.
"AFFILIATE" of a referenced Person means (a) another Person
controlling, controlled by or under common control with such referenced Person,
or (b) any other Person beneficially owning or controlling twenty-five percent
(25%) or more of the outstanding voting securities or rights of or the interest
in the capital, distributions or profits of the referenced Person, PROVIDED,
HOWEVER, that the term "Affiliate" shall not include any Fund, any Company, or
any similar investment company for which the Parent and/or its Affiliates
provide the type of services contemplated by the Distributor's Contracts and the
Advisory Agreements. The terms "control," "controlling," "controlled" and the
like shall mean the direct or indirect possession of the power to direct or
cause the direction of the management or policies of a Person or the disposition
of its assets or properties, whether through ownership, by contract, arrangement
or understanding, or otherwise.
"ALLOCATION NOTICE" means a written notice from the Program
Administrator to the Collection Agent (with a copy to each of the other parties
to the Program Collection Agency Agreement) stating funds are to be allocated in
accordance with the Allocation Procedures and disbursed in accordance with
Section 5.03(a) of the Program Collection Agency Agreement on a more frequent
basis, which notice shall specify the frequency of such allocation.
"ALLOCATION PROCEDURES" means the program allocation procedures set
forth in Schedule II to the Master Agreement.
"AMORTIZED MAXIMUM AGGREGATE SALES CHARGE ALLOWABLE" means with
respect to the Portfolio Assets relating to any Fund as of any date of
determination, (i) an amount equal to the Maximum Aggregate Sales Charge
Allowable payable in respect of such Portfolio Assets, minus (ii) the aggregate
amounts paid by the applicable Company and the holders of its Shares relating
thereto.
"ANCILLARY RIGHTS" means all of the Distributor's rights, remedies,
title and interests in, to and under (i) the Program Documents (to the extent of
representations, warranties, covenants, indemnities, security interests and
other rights and remedies thereunder), including the right to receive payments
pursuant thereto, (ii) all UCC financing statements covering any of the
foregoing, (iii) all proceeds thereof, and (iv) all other rights the Distributor
may have in respect of the foregoing under Applicable Law, in each case as they
relate to the Purchased Portfolio Assets.
"APPLICABLE LAW" means all applicable laws and treaties, judgments,
decrees, injunctions, writs and orders of any court, tribunal, arbitrator or
governmental agency or
X-3
<PAGE> 59
authority or regulatory body and rules, regulations, orders, licenses and
permits of any governmental body, instrumentality, agency or authority or
regulatory body.
"ASSET BASED SALES CHARGES" means fees for distribution services
(but not Shareholder Servicing Fees) payable by a Fund, or a Company with
respect to a Fund, pursuant to the Distribution Plan and Distributor's Contract
in consideration of the distribution of its Shares.
"ASSIGNED PORTION" shall have the meaning assigned to such term in
Section 9.06 of the Program Collection Agency Agreement.
"AUTHORITY" means any governmental or self-regulatory authority
(including the NASD, the stock exchanges and the SEC), whether executive,
legislative, judicial, regulatory, administrative or other, or any combination
thereof, including any federal, state, territorial, county, municipal or other
government or governmental or self-regulatory agency, arbitrator, board, body,
branch, bureau, commission, corporation, court, department, instrumentality,
master, mediator, panel, referee, system or other political unit or subdivision
or other entity of any of the foregoing, whether domestic or foreign.
"AUTHORIZED REPRESENTATIVE" shall have the meaning assigned to such
term in Section 4.03(d) of the Program Collection Agency Agreement.
"AUTHORIZED REPRESENTATIVE CERTIFICATE" shall have the meaning
assigned to such term in Section 4.03(d) of the Program Collection Agency
Agreement.
"BANKRUPTCY CODE" means Title 11 of the United States Code, Sections
101, ET SEQ., and the rules and regulations promulgated thereunder, as amended
from time to time.
"BASE RATE" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time which rate per annum shall at all
times be equal to the higher of:
(a) the Prime Rate; and
(b) 1/2 of one percent (0.50%) per annum above the Federal Funds
Rate.
"BUSINESS DAY" means any day on which banks are not authorized or
required to close in New York City and in Boston, Massachusetts.
"CALCULATION DATE" means the last day of each calendar month.
"CASH EQUIVALENTS" shall have the meanings assigned to such term in
Section 4.04 of the Program Collection Agency Agreement.
"CAUSE" shall have the meaning assigned to such term in Section 5.01
of Program Servicer Agent Agreement.
X-4
<PAGE> 60
"CDSC SUB-ACCOUNTS" shall have the meaning assigned to such term in
Section 4.05(a) of the Program Collection Agency Agreement.
"CLOSING DATE" means the date on which the parties hereto or their
representatives meet and confirm that all of the conditions precedent set forth
in Section 3.02 of the Master Agreement have been satisfied.
"CODE" means the Internal Revenue Code of 1986, as amended, and as
it may be further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
"COLLATERAL AGENT" shall have the meaning assigned to such term in
Section 6.01 of the Program Collection Agency Agreement.
"COLLECTION AGENT" means Bankers Trust Company, as collection
agent under the Program Collection Agency Agreement.
"COLLECTION AGENT FEE" means the fee payable to the Collection Agent
pursuant to Section 7.02 of the Program Collection Agency Agreement.
"COMMISSION SHARE" means, in respect of any Fund, each Share of such
Fund which is issued under circumstances which would normally give rise to an
obligation of the holder of such Share to pay a Contingent Deferred Sales Charge
upon redemption of such Share, including any Share of such Fund issued in
connection with a Permitted Free Exchange, and any such Share shall not cease to
be a Commission Share prior to the redemption (including a redemption in
connection with a Permitted Free Exchange) or conversion even though the
obligation to pay the Contingent Deferred Sales Charge shall have expired or
conditions for waivers thereof shall exist.
"COMPANY" means each investment company registered with the SEC
under the Investment Company Act specified on Schedule I to the Master
Agreement, as the same may be supplemented pursuant to Section 8.17.
"COMPLETE TERMINATION" shall in respect of the Distribution Plan in
respect of any Fund have the meaning assigned to such term in such Distribution
Plan in effect on the date of the Master Agreement..
"CONDUCT RULES" means the Conduct Rules of the NASD, and the rules,
regulations and interpretations (including examples and explanations) of the
NASD in respect thereto, as the same may from time to time be amended,
supplemented or modified.
"CONFIDENTIAL INFORMATION" shall have the meaning assigned to such
term in Section 8.10 of the Master Agreement.
X-5
<PAGE> 61
"CONSEQUENTIAL DAMAGES" means speculative or indirect damages, such
as loss of future profits, not within the contemplation of the Parties.
"CONTINGENT DEFERRED SALES CHARGE" means the contingent deferred
sales charges, or other similar charges howsoever denominated, payable, either
directly or by withholding from the proceeds of the redemption of the Shares of
such Fund, by the shareholders of such Fund on any redemption of Shares relating
to such Fund in accordance with the Distributor's Contract and the Prospectus
relating to such Fund.
"CONTROL" shall have the meaning assigned in Section 2(a)(9) of the
Investment Company Act.
"CONVERSION FEATURE" means with respect to any Share of any Fund, a
mandatory or elective provision which permits or requires such Share to be
converted into a share of a different class.
"CORPORATE TRUST OFFICE" means the principal office of Bankers Trust
Company at which, at any particular time, its corporate trust business shall be
administered, which office at the date of the execution of the Master Agreement
and the Program Collection Agency Agreement is located at Four Albany Street,
New York, New York 10006, Attention: Corporate Trust and Agency Group-Structured
Finance or at any other time at such other address as Bankers Trust Company may
designate from time to time.
"CUSTODIAN" means any Person in its capacity as custodian for the
Funds.
"DATA PROCESSING SERVICE PROVIDER" means First Data Corporation.
"DATE OF ORIGINAL ISSUANCE" shall have the meaning assigned to such
term in the Allocation Procedures.
"DEBT" of any Person means, on any date: (i) all indebtedness of
such Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property, (iv) all lease
obligations of such Person which have been or should be included in total
liabilities in accordance with GAAP, (v) all indebtedness secured by a Lien on
any asset of such Person, whether or not such Person has assumed or is otherwise
liable for such indebtedness, (vi) all Debt of others guaranteed in any manner,
directly or indirectly, by such Person (or in effect guaranteed indirectly by
such Person through an agreement intended to have the effect of enabling an
obligor other than such Person to satisfy Debt or to assure the holder of Debt
of such obligor against loss, whether through an obligation of such Person to
purchase property or services or to maintain such obligor's financial condition
or otherwise), (vii) all reimbursement obligations of such Person in respect of
letters of credit, foreign currency sale agreements and bankers' acceptances,
except such as are obtained by such Person to secure performance of obligations
(other than for borrowed money or similar obligations) incurred in the ordinary
course of such Person's business that are not overdue or in default beyond the
expiration of any applicable grace or cure period and (viii) all obligations
(net of any entitlements, whether contractual or otherwise) of such Person under
interest rate protection agreements (including
X-6
<PAGE> 62
interest rate swaps, caps, floors, collars and similar agreements) and other
market protection agreements.
"DEPOSITED COLLECTION FUNDS" means all funds at any time and from
time to time on deposit in or otherwise to the credit of the Program Collection
Account, including Cash Equivalents.
"DISTRIBUTION PLAN" means with respect to any Fund, the distribution
plan of the related Company, in respect thereto, relating to the Shares of such
Fund, and provided no Complete Termination has occurred, any successor or
replacement distribution plan.
"DISTRIBUTOR" shall have the meaning assigned to such term in the
preamble to the Master Agreement.
"DISTRIBUTOR CDSC SUB-ACCOUNT" shall have the meaning assigned to
such term in Section 4.05(a) of the Program Collection Agency Agreement.
"DISTRIBUTOR'S ASSET BASED SALES CHARGE PORTION" means the portion
of the Portfolio Assets relating to all Funds constituting Asset Based Sales
Charges allocable to the Distributor pursuant to the Allocation Procedures.
"DISTRIBUTOR'S CDSC PORTION" means the portion of the Portfolio
Assets relating to all Funds constituting Contingent Deferred Sales Charges
allocable to the Distributor pursuant to the Allocation Procedures.
"DISTRIBUTOR'S CONTRACT" means, with respect to any Fund, the
underwriting agreement between the Distributor and the applicable Company of
such Fund and any replacement agreement as may be adopted in the future,
pursuant to which the Distributor has been appointed as the agent of such
Company to sell and distribute the Shares of such Fund.
"DISTRIBUTOR'S INVESTMENT EARNINGS" shall have the meaning assigned
to such term in Section 4.03(c) of the Program Collection Agency Agreement.
"DISTRIBUTOR'S PORTION" means, on any date, the sum of (i)
Distributor's CDSC Portion, (ii) Distributor's Asset Based Sales Charge Portion
and (iii) the Distributor's Investment Earnings.
"DISTRIBUTOR'S REMITTANCE ACCOUNT" shall mean the account of the
Distributor maintained by State Street Bank and Trust Company, 225 Franklin
Street, Boston, Massachusetts 02109, ABA No.: 011-000-028, Acct. No.: 5462-9399
Ref. "Attention: Ms. Denise Turner," or such other account as the Distributor
shall designate in writing to the Program Administrator and the Collection
Agent.
"DOLLARS" and "$" mean lawful money of the United States of America.
"ELIGIBLE FUND" means any Company or separate series of any Company:
X-7
<PAGE> 63
(i) which shall have caused to be approved in compliance with
all Applicable Law, and shall have in full force and
effect, a distribution plan and distributor's contract
substantially in the form of Exhibits D and E to the Master
Agreement;
(ii) with respect to which the Distributor shall act as a
principal underwriter , and the Advisor shall act as
investment adviser (the foregoing not limiting the
Advisor's ability to appoint sub-advisors);
(iii) with respect to which the Distributor shall be entitled to
receive Asset Based Sales Charges and Contingent Deferred
Sales Charges on terms and conditions comparable to those
applicable to other Funds on the Closing Date;
(iv) with respect to which there shall be in full force and
effect an Irrevocable Payment Instruction, in the form of
Exhibit F to the Master Agreement, which has been
acknowledged and agreed to by the related Company and the
Transfer Agent, on behalf of such Fund as contemplated
thereby; and
(v) in respect of which the Advisor or the Distributor
shall have furnished to the Purchaser and the
Program Administrator: (A) a true and complete
copy of the registration statement on Form N1-A
for such series (such delivery being deemed to
have occurred upon filing of such documents under
the SEC's EDGAR system; provided that the Program
Administrator has received written notice from the
Distributor of such filing); (B) a true and
complete copy of the distribution plan in respect
of such series; (C) a true and complete copy of
the distributor's contract in respect of such
series; and (D) to the extent not reflected in the
registration statement described in clause (A)
above, a statement of the Fundamental Investment
Objectives and Policies of such series.
"ELIGIBLE PORTFOLIO ASSETS" means a Portfolio Asset: (a) which
constitutes an "account" or "general intangible," as such terms are defined in
the UCC of all jurisdictions the laws of which are applicable for determining
whether the interests created by the Program Documents are perfected, and the
obligor in respect of which is an Eligible Fund or a shareholder of an Eligible
Fund resident or organized in the United States but not a governmental entity
(PROVIDED that a Portfolio Asset shall not be deemed to fail to meet the
foregoing obligor condition solely because a minor portion of the Shareholders
of a Fund are not organized in or residents of the United States or are
governmental entities); (b) which is denominated and payable in Dollars; (c)
which constitutes a legal, valid and binding contractual obligation of the
obligor thereof enforceable in accordance with its terms, which is fully vested,
not executory and
X-8
<PAGE> 64
shall not be subject to a dispute, offset, counterclaim, defense or Adverse
Claim whatsoever, except as enforceability may be limited by applicable
bankruptcy laws and other similar laws affecting the rights and remedies of
creditors of the obligor generally and general principles of equity whether
considered in a proceeding in equity or law; (d) which does not and the
origination of which did not contravene any Applicable Law; (e) which, in
respect of Asset Based Sales Charges, requires the payment thereof at the
Maximum Aggregate Sales Charge Allowable; (f) which, in respect of Contingent
Deferred Sales Charges, the terms of which require the payment thereof at the
rate set forth on Schedule III to the Master Agreement and do not permit Free
Redemptions except in the specific situations set forth in the applicable
registration statement as in effect on the Closing Date (the foregoing not being
intended to limit the Distributor's right to amend the Contingent Deferred Sales
Charges or the terms thereof with respect to Contingent Deferred Sales Changes
not sold to the Purchaser); and (g) with respect to which the related Share does
not have a Conversion Feature other than a Permitted Conversion Feature, and (h)
with respect to which the related Shares do not have a Redemption Feature other
than a Permitted Redemption Feature.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated thereunder.
Section references to ERISA are to ERISA, as in effect at the date of this
Agreement and, as of the relevant date, any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA AFFILIATE" means, with respect to any Sponsor Entity, any
corporation or trade or business that is a member of any group of organizations
(i) described in Section 414(b) or (c) of the Code of which a Person is a member
and (ii) solely for purposes of potential liability under Section 302(c)(11) of
ERISA and Section 412(c)(11) of the Code and the lien created under Section
302(f) of ERISA and Section 412(n) of the Code, described in Section 414(m) or
(o) of the Code of which such Person is a member.
"EVENT OF TERMINATION" means:
(a) the Parent, the Distributor (as Distributor or as Program
Servicer Agent), the Advisor, any Transfer Agent or any Company or Fund
shall fail to make or cause to be made in the manner and when due any
payment or deposit to be made or to be caused to be made by it under this
Agreement or any of the other to which it is a party and such failure
shall continue for three (3) Business Days; or
(b) the Parent, the Distributor (as Distributor or as Program
Servicer Agent), the Advisor, any Transfer Agent or any Selling Agent, or
any Company shall fail to perform or observe any covenant or agreement on
its part to be performed or observed under any Program Document (other
than those described in clause (a) of this definition); or
(c) (i) any representation or warranty made or deemed made by the
Parent, the Distributor (as Distributor or as Program Servicer Agent) or
the
X-9
<PAGE> 65
Advisor (or any of their respective officers) under or in connection with
any Program Document shall have been incorrect when made or deemed made,
or (ii) any Investor Report or any other statement, certificate or report
delivered by or on behalf of the Parent, the Distributor or the Advisor in
connection with this Agreement or any other Program Document, shall have
been incorrect or misleading when delivered; or
(d) the Purchaser shall fail to acquire in a True Sale, or shall
cease to have, a 100% undivided ownership interest in any Purchased
Portfolio Asset, free and clear of any Adverse Claim; or
(e) (i) the Advisor, the Distributor, the Parent, any Transfer Agent
which is a Sponsor Entity, any Company, any Fund or any Significant
Affiliate of any thereof shall generally not pay its Debts as such Debts
become due, or shall admit in writing its inability to pay its Debts
generally, or shall make a general assignment for the benefit of creditors
or, in the case of the Distributor, the Distributor shall otherwise become
"insolvent" within the meaning of SIPA; or (ii) any proceeding shall be
instituted by or against the Advisor, the Distributor, the Parent, any
Transfer Agent which is a Sponsor Entity, any Company, any Fund or any
Significant Affiliate of any thereof seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
Debts under any Applicable Law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and,
in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of sixty (60) days or any of the actions sought in
any proceeding described in (ii) above (including an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property)
shall occur; or (iii) the Advisor, the Distributor, the Parent, any
Transfer Agent which is a Sponsor Entity, any Company, any Fund or any
Significant Affiliate of any thereof shall take any action to authorize
any of the actions set forth above in this clause (e); or
(f) there shall have occurred any material adverse change (except as
disclosed in the Parent's 10-Q for the fiscal quarter ended June 30, 1998)
in (i) the financial condition or results of operations of the Parent and
its consolidated subsidiaries taken as a whole since the Reference Date;
or (ii) the Parent, the Distributor, any Advisor, any Transfer Agent or
any other Significant Affiliate of any thereof shall fail to make payments
when due in respect of Debt aggregating in excess of $1,000,000, provided
that the determination of defaults on such Debt is not being diligently
contested in good faith through appropriate proceedings; or
(g) any Distribution Plan, Distributor's Contract, Prospectus, or
the Contingent Deferred Sales Charge arrangements applicable to holders of
Shares
X-10
<PAGE> 66
of any fund or the terms of any Conversion Feature or Redemption Feature
in respect of any Share of any Fund, each as in effect on the date of this
Agreement, shall be amended, waived, supplemented or modified (including
any modification in the amount of the Asset Based Sales charge or
Contingent Deferred Sales charge payable whether or not such modification
is permitted by the terms thereof), in any manner or by any means
(including a change in Applicable Law), which could reasonably be expected
to have an Adverse Effect, unless waived by the Program Administrator; or
(h) the Securities Investor Protection Corporation, established
under SIPA, shall have applied for a protective decree against the
Distributor; or
(i) the Distributor shall have failed to meet the minimum capital
requirements prescribed from time to time by Rule 15c3-1 under the
Exchange Act and such failure continues uncured for 10 days after the
Distributor obtains knowledge thereof; or
(j) the SEC shall have modified or terminated Rule 12b-1 of the
Investment Company Act or the NASD shall have modified or terminated the
Conduct Rules, in each case in a manner which could reasonably be expected
to give rise to an Adverse Effect; or
(k) the Distributor shall cease to be registered as a broker/dealer
under the Exchange Act and with the NASD or the NASD suspends the
Distributor's membership or registration; or
(l) any Company or any Transfer Agent shall, without the written
consent of the Program Administrator, fail to withhold from redemption
proceeds paid to any holder of a Share any Contingent Deferred Sales
Charges required to be withheld and remit such funds to the Program
Collection Account in accordance with the Irrevocable Payment Instruction,
or shall be prevented by any Authority or by any Applicable Law from doing
so or any Company or any Transfer Agent shall so assert in writing; or
(m) any Fund or Company shall be required by any Authority or any
Applicable Law to cease or suspend or shall voluntarily cease or suspend,
the sale of Shares of any Fund under circumstances that could reasonably
be expected to result in an Adverse Effect; PROVIDED, HOWEVER, that the
voluntary cessation or suspension of the issuance of Shares by a Fund
solely as a result of rapid growth or excessive size does not constitute
such a circumstance; or
(n) any Company in respect of itself or any Fund shall propose or
effect a merger or other combination with another Person (other than a
Permitted Merger) or Liquidation Plan if, in the reasonable judgment of
the Program Administrator, the amount of the potential unrealized Program
Collections from such Fund is material; or
X-11
<PAGE> 67
(o) as of any Calculation Date the NAV Decline Ratio (adjusted for
stock splits, capital gains and annual and quarterly income distributions)
from the end of the immediately preceding calendar month shall be
twenty-five percent (25%) or more; or
(p) the Advisor, or another Affiliate of the Parent which shall have
made each of the representations of the Advisor in, and shall have agreed
to be bound by each of the obligations of the Advisor under, the Program
Documents to which the Advisor is a party, shall cease to act as the
investment advisor of any Fund under the applicable Advisory Agreement; or
(q) aggregate Free Redemptions result in the occurrence of the
Redemption Threshold Date; or
(r) there shall occur, or any Person (including any trustee in
bankruptcy of any Person) shall assert, any dispute, offset, counterclaim,
defense or Adverse Claim whatsoever in respect of all or any portion of
the Purchased Portfolio Assets; PROVIDED, HOWEVER, that, if it is clear
under the circumstances that the assertion of any such dispute, offset,
counterclaim, defense, or Adverse Claim is without merit, such assertion
shall not in and of itself constitute an Event of Termination; PROVIDED,
FURTHER that until the Program Administrator shall have reasonably
determined that such assertion is without merit, the assertion shall be
deemed an event which with the passage of time or notice or both would
constitute an Event of Termination; or
(s) any Fund shall cease to be an Eligible Fund under circumstances
that could reasonably be expected to result in an Adverse Effect.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, and the
rules and regulations of the SEC thereunder.
"EXCHANGE SHARE" means, in respect of any Fund, Shares of such Fund
that were issued in a Permitted Free Exchange of Shares of any other Fund.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for the two Business
Days closest to such Business Day on which such rate is so published; PROVIDED
that, if such publication is terminated or suspended by the Federal Reserve Bank
of New York, the Program Administrator shall specify a commercially reasonable
alternate source for determining such rate.
X-12
<PAGE> 68
"FEDWIRE" means the Fedwire funds transfer system maintained by the
Federal Reserve Banks.
"FREE REDEMPTIONS" means a redemption of Shares of any Fund (other
than Reinvested Shares of such Fund) by a shareholder of such Fund under any
arrangement which relieves or defers, in whole or in part, such shareholder's
obligation to pay the maximum Contingent Deferred Sales Charge which would have
been payable in the absence of such arrangement by any other shareholder of such
Fund redeeming a Share of such Fund that had been held by such other shareholder
for the same period the Shares of such Fund had been held by the shareholder in
question, including (i) arrangements pursuant to which certain Persons are
entitled to acquire Shares of such Fund under circumstances in which no
Contingent Deferred Sales Charges will be payable by them, and (ii) arrangements
pursuant to which Contingent Deferred Sales Charges are deferred in connection
with the redemption of Shares of such Fund because the redeeming shareholder is
reinvesting all or a portion of the proceeds of such redemption in shares of
another fund; PROVIDED, HOWEVER, that the term "Free Redemptions" shall not
include any Permitted Free Exchanges.
"FREE SHARE" means, in respect of any Fund, each Share of such Fund
other than a Commission Share.
"FUND" means each separate series of a Company specified on Schedule
I to the Master Agreement, as the same may be supplemented pursuant to Section
8.17 of the Master Agreement.
"FUNDAMENTAL INVESTMENT OBJECTIVES AND POLICIES" means, with respect
to any Fund, the investment restrictions and, if applicable, the investment
objectives and policies which may not be amended without the approval of the
Fund's shareholders.
"GAAP" means generally accepted accounting principles in the United
States of America in effect from time to time.
"GOVERNMENTAL AUTHORIZATIONS" means all franchises, permits,
licenses, approvals, consents and other authorizations of any kind of all
Authorities.
"GOVERNMENTAL FILINGS" means all filings, including franchise and
similar tax filings, and the payment of all fees, assessments, interests and
penalties associated with such filings with all Authorities.
"IMMEDIATE PARENT" shall have the meaning assigned to such term in
Section 5.02(h) of the Master Agreement.
"INCEPTION DATE" means, with respect to any Fund, the first date
upon which Shares of such Fund were issued in a transaction taken into account
in computing the Purchase Price paid on the Purchase Date in respect of the
Portfolio Assets of such Fund.
X-13
<PAGE> 69
"INDEMNIFIED LIABILITIES" shall have the meaning assigned to such
term in Section 8.01 of the Program Collection Agency Agreement.
"INDEMNIFIED PARTY" shall have the meaning assigned to such term in
Section 8.04(b) of the Master Agreement.
"INITIAL PURCHASE CUT-OFF DATE" means September 30, 1998.
"INITIAL PURCHASE DATE" means September 30, 1998.
"INITIAL PURCHASE FUNDING DATE" means the date occurring during the
first 10 Business Days of October 1998, as determined by the Purchaser, for the
funding of the Initial Purchase Price by the Purchaser of Portfolio Assets
arising out of Shares issued on or prior to the Initial Purchase Cut-off Date,
PROVIDED, THAT such date will not occur for a minimum of three Business Days
following the submission by the Distributor to the Purchaser of all information
required to be submitted by Section 5.01(v) of the Master Agreement.
"INITIAL PURCHASE PRICE" shall have the meaning assigned to such
term in Section 2.01 of the Purchase Agreement.
"INVESTMENT ADVISERS ACT" means the Investment Advisers Act of 1940,
as amended, and the rules and regulations of the SEC thereunder.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940,
as amended, and the rules and regulations of the SEC thereunder.
"INVESTMENT EARNINGS" means as of any Monthly Settlement Date, the
interest and income resulting from the investment performance of the Cash
Equivalents (taken as a whole), if any, for the most recent calendar month
ending prior to the Monthly Settlement Date in question (or, in the case of a
Monthly Settlement Date which occurs during the first week of a calendar month,
for the second most recent calendar month ending prior to the Monthly Settlement
Date in question).
"INVESTMENT LOSSES" means as of any Monthly Settlement Date, the
losses resulting from the investment performance of the Cash Equivalents (taken
as a whole), if any, for the most recent calendar month ending prior to the
Monthly Settlement Date in question (or, in the case of a Monthly Settlement
Date which occurs during the first week of a calendar month, for the second most
recent calendar month ending prior to the Monthly Settlement Date in question).
"INVESTOR" means in respect of any Person, holders of any equity
securities or Debt of such Person the proceeds of which were used to purchase
interests in the Purchased Portfolio Assets.
X-14
<PAGE> 70
"INVESTOR REPORT" means the report in substantially the form of
Exhibit H to the Master Agreement, together with the Data Processing Service
Provider reports specified in the Program Servicing Procedures.
"IRREVOCABLE PAYMENT INSTRUCTION" means the Distributor's
irrevocable payment instruction to each Company, the Transfer Agent and
Custodian in respect of each Fund, in the form of Exhibit F to the Master
Agreement.
"LIABILITY" shall have the meaning assigned to such term in Section
8.04(b) of the Master Agreement.
"LIEN" means any claim, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien or security interest (statutory or
other), or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing, and the filing of any financing
statement under the UCC or comparable law of any jurisdiction), or other charge
or encumbrance, including the retained security title of a conditional vendor or
lessor.
"LIQUIDATION PLAN" means, in respect of any Fund, a plan of
liquidation of such Fund, a plan to dispose of a substantial portion of the
assets of such Fund out of the ordinary course of business (except in connection
with a Permitted Merger) or any other plan of action with a similar effect.
"MASTER AGREEMENT" means that certain Pioneer Program Master
Agreement, dated as of September 30, 1998, among The Pioneer Group, Inc.,
Pioneer Funds Distributor, Inc., Pioneering Management Corporation, PLT Finance,
L.P., Putnam, Lovell, de Guardiola & Thornton Inc. and Bankers Trust Company, as
Collection Agent.
"MAXIMUM AGGREGATE SALES CHARGE ALLOWABLE" means with respect to any
Fund the maximum Asset Based Sales Charge which may be paid by the related
Company (taking into account the applicable permitted Conversion Feature) in
respect of Shares of such Fund, together with interest thereon at the Maximum
Interest Allowable, relating to such Fund, pursuant to the "maximum sales charge
rule" set forth in the Conduct Rules, assuming the related Company in respect of
such Fund pays a separate Service Fee in respect of Shares of such Fund,
unreduced by payments theretofore made in respect thereof by such Company, in
respect of Shares of such Fund.
"MAXIMUM INTEREST ALLOWABLE" means the maximum interest which may be
taken into account under Section 2830(d) of the Conduct Rules in computing the
Maximum Aggregate Sales Charge Allowable.
"MONTHLY COLLECTION DETERMINATION DATE" means the twenty ninth
(29th) calendar day of each calendar month, or if such day is not a Business
Day, the next succeeding Business Day; PROVIDED, HOWEVER, that if there is no
such day in such calendar month, the Monthly
X-15
<PAGE> 71
Collection Determination Date shall occur on the first Business Day of the
immediately following calendar month.
"MONTHLY SETTLEMENT DATE" means the Business Day next succeeding
each Monthly Collection Determination Date.
"MULTIEMPLOYER PLAN" means a multiemployer plan defined as such in
Section 3(37) or 4001(a)(3) of ERISA to which contributions have been, or were
required to have been, made by a Person or any ERISA Affiliate, or under which
such Person or any ERISA Affiliate may incur any liability.
"NASD" means the National Association of Securities Dealers, Inc.
and NASD Regulation, Inc. or any successor entity or entities.
"NAV DECLINE RATIO" in reference to a period from the end of one
month (the "REFERENCE DATE") to a later Calculation Date shall be determined by
(i) determining the negative or positive percentage change in the Net Asset
Value per Share of each Fund from the Reference Date to the Calculation Date,
(ii) computing the arithmetic sum of the products obtained by multiplying the
percentage change obtained in clause (i) for Shares of each Fund by the Net
Asset Value of the Shares of such Fund on the Calculation Date, and (iii) if the
sum obtained in clause (ii) is negative dividing the sum obtained in clause (ii)
by the Net Asset Value of all Shares of all Funds on the Calculation Date and
expressing the result as a negative percentage, and if the sum obtained in
clause (iii) is positive the NAV Decline Ratio shall be zero.
"NET ASSET VALUE" means, (i) with respect to any Fund, as of the
date any determination thereof is made, the net asset value of such Fund
computed in the manner such value is required to be computed by the applicable
Company, in respect of such Fund in its reports to its shareholders, and (ii)
with respect to any Share of such Fund as of any date, the quotient obtained by
dividing the net asset value of such Fund (as computed in accordance with clause
(i) above) as of such date allocated to the Shares of such Fund (in accordance
with the constituent documents and the Prospectus for such Fund) by the number
of Shares of such Fund outstanding on such date.
"OTHER TAXES" shall have the meaning assigned to such term in
Section 8.05 of the Master Agreement.
"PARENT" shall have the meaning assigned to such term in the
preamble to the Master Agreement.
"PARTY" means, with respect to any agreement or document, each
Person who becomes a party to such document as a signatory thereto or to a
supplement to such document or as a permitted successor or assign of any such
Person.
"PERMITTED BANK" shall have the meaning assigned to such term in
Section 4.04(a)(iv) of the Program Collection Agency Agreement.
X-16
<PAGE> 72
"PERMITTED CONVERSION FEATURE" means with respect to any Share of
any Fund, a Conversion Feature in respect of such Fund which, by its terms, may
not become effective: (i) in respect of any Commission Share of such Fund with a
Date of Original Issuance prior to October 1, 1998, prior to the first day of
the calendar quarter in which the 96 month anniversary of the Date of Original
Issuance for such Commission Share occurs, (ii) in respect of any Commission
Share of such Fund with a Date of Original Issuance on or after October 1, 1998,
prior to the first day of the calendar month in which the 96 month anniversary
of the Date of Original Issuance for such Commission Share occurs, and (iii) in
respect of any Free Shares of such Fund, prior to the date the Commission Share
of such Fund in respect of which such Free Share was issued, is converted
pursuant to a Conversion Feature meeting the requirement of clause (i) of this
definition; PROVIDED, HOWEVER that (a) in the case of the Pioneer Intermediate
Tax Free Fund, so long as such Fund has a six (6) year Contingent Deferred Sales
Charge schedule, the number "96" in each of (i) and (ii) above shall be replaced
with the number "72", and (b) in the case of the Pioneer Short-Term Income
Trust, so long as such Fund has a five (5) year Contingent Deferred Sales Charge
schedule, the number "96" in each of (i) and (ii) above shall be replaced with
the number "60".
"PERMITTED DESIGNEE" means, (a) the Program Administrator and the
Purchaser, and (b) any officer, partner, employee, agent, representative, legal
counsel, auditors or trustee designated by the Purchaser or the Program
Administrator, as the case may be.
"PERMITTED ENTITY" shall have the meaning assigned to such term in
Section 5.02 of the Program Servicer Agent Agreement.
"PERMITTED FREE EXCHANGE" means any exchange of Shares of one Fund
(the "REDEEMING FUND") for Exchange Shares of another Fund (the "ISSUING FUND"),
where, pursuant to the applicable constituent documents of the Issuing Fund: (i)
the Exchange Shares of the Issuing Fund are obligated to bear an Asset Based
Sales Charge at the same rate as the exchanged shares of the Redeeming Fund;
(ii) Exchange Shares of the Issuing Fund are deemed for all purposes (including
the computation of the amount of, and timing of payment of the related
Contingent Deferred Sales Charge) to have been acquired at the time when the
exchanged Shares of the Redeeming Fund were acquired (or deemed to have been
acquired) by the holder thereof; (iii) the exchanging shareholder becomes
obligated to pay to the Issuing Fund the same Contingent Deferred Sales Charge
in respect of the Exchange Shares of the Issuing Fund and on the same terms as
such holder was obligated to pay to the Redeeming Fund in respect of the Shares
of the Redeeming Fund so exchanged; (iv) the date upon which such Exchange
Shares of the Issuing Fund received in the Exchange are converted pursuant to
the Permitted Conversion Feature is the same as the date the exchanged Shares of
the Redeeming Fund were to be converted pursuant to the Permitted Conversion
Feature of the exchanged Shares; (v) the Maximum Aggregate Sales Charge
Allowable in respect of the Issuing Fund pursuant to the Distributor's Contract,
the Distribution Plan and the Prospectus of the Issuing Fund is increased on the
effective date of the exchange by 6.25% (or the percentage equivalent to the
then Maximum Aggregate Sales Charge Allowable in respect of the Exchange Shares
expressed as a percentage of the original issuance price thereof) of the Net
Asset Value on such exchange date of the Shares of the Redeeming Fund being so
exchanged; PROVIDED, that the amount of such increase shall not exceed the
Amortized Maximum Aggregate Sales Charge Allowable of the
X-17
<PAGE> 73
Redeeming Fund immediately prior to the exchange; (vi) the Amortized Maximum
Aggregate Sales Charge Allowable in respect of the Redeeming Fund is reduced by
the same amount as the Maximum Aggregate Sales Charge Allowable in respect of
such Issuing Fund is increased; and (vii) both the redemption of the Shares of
the Redeeming Fund so exchanged and the issuance of the Shares of the Issuing
Fund are effected at the Net Asset Value of such Shares at the date of the
exchange without any reduction for fees or expenses attributable to such
exchange (it being understood that the foregoing does not prohibit a requirement
that the exchanging shareholder pay a separate fee in connection with such an
exchange).
"PERMITTED MERGER" means a merger or consolidation of two or more
Funds or the sale of all or substantially all of the assets of the Fund to
another Fund: (i) pursuant to which all of the assets of the participating Funds
are transferred to the surviving Fund, (ii) pursuant to which the surviving Fund
assumes all obligations of the participating Funds, including the obligations in
respect of the Portfolio Assets, (iii) which is carried out in a manner so that
the Distribution Plan of the participating Funds is continued as part of the
Distribution Plan of the surviving Fund without affecting the rights of the
Distributor in respect of the Portfolio Assets relating to the participating
Funds, and (iv) does not otherwise give rise to a reasonable possibility of an
Adverse Effect.
"PERMITTED REDEMPTION FEATURE" means with respect to any Share of
any Fund, a Redemption Feature which, by its terms, requires that Shares owned
of record for any Shareholder's account be redeemed in the following order:
FIRST, Free Shares owned of record for such Shareholder account to the extent
thereof (it being understood that under no circumstance shall the redemption of
a Free Share include the appreciation on Commission Shares above the original
Net Asset Value of such Commission Shares at the Date of Original Issuance
thereof); and SECOND, each Commission Share owned of record for such Shareholder
account in the same order as the lowest contingent deferred sales charge
percentage thereof occurred (it being understood that the redemption of each
individual Commission Share will include all the appreciation on such Commission
Share above the original Net Asset Value of such Commission Share at the Date of
Original Issuance thereof).
"PERSON" means an individual, a corporation, a partnership, a joint
venture, a limited liability company, a trust or unincorporated organization, a
joint stock company or other similar organization, a government or any political
subdivision thereof, a court, or any other legal entity whether acting in an
individual, fiduciary or other capacity.
"PLACEMENT" means any transaction pursuant to which the Purchaser
(including, without limitation, any Placement Trust which obtains such interest
directly or indirectly from the Purchaser) sells or otherwise transfers,
participates or causes to be sold, transferred or participated interests in the
Purchased Portfolio Assets relating to any Fund (including the right to receive
any portion of any Program Collections) to any Person, including a Placement
Trust which publicly or privately sells debt instruments and/or certificates or
other instruments representing ownership interests in such Placement Trust or
interest in any Purchased Portfolio Assets relating to any Fund.
X-18
<PAGE> 74
"PLACEMENT AGENT" means Putnam, Lovell, de Guardiola & Thornton
Inc., as placement agent for any Placement.
"PLACEMENT TRUST" means any trust or other special purpose entity to
which any interest in any of the Purchased Portfolio Assets relating to any Fund
or the right to receive any Program Collections with respect thereto has been
transferred in connection with a Placement.
"PLAN" means an employee benefit or other plan as defined in Section
3(3) of ERISA established or maintained by a Person or any ERISA Affiliate
during the five-year period ended immediately prior to the Purchase Date or to
which such Person or any ERISA Affiliate makes, is obligated to make or has,
within the five-year period ended immediately prior to the Purchase Date, been
required to make contributions or under which such Person or any ERISA Affiliate
may incur any liability or which covers any employee or former employee of such
Person or any ERISA Affiliate other than a Multiemployer Plan.
"PORTFOLIO ASSETS" means with respect to each Fund, all of the
rights under the related Distributor's Contract, the related Distribution Plan
and the related Prospectus to receive amounts paid or payable in respect of
Asset Based Sales Charges (including interest at the Maximum Interest Allowable)
and Contingent Deferred Sales Charges, in each case in respect of the Shares of
such Fund and in respect of Shares of any other Fund acquired in any Permitted
Free Exchange of Shares of the Fund in question, including any similar amount
paid or payable under any replacement distribution plan, distributor's contract
or prospectus, and any continuation payments in respect thereof paid or payable
by the related Company in respect of the Shares of such Fund in the event of a
termination of the related Distribution Plan, Distributor's Contract or
Prospectus.
"POST-DEFAULT RATE" means in respect of any amount not paid when
due, a rate per annum during the period commencing on the due date thereof until
such amount is paid in full equal to the Base Rate as in effect from time to
time.
"PRIME RATE" means the rate of interest published in The Wall Street
Journal in respect of each day (or, if such day is not a Business Day, for the
next preceding Business Day) or, if such rate is not so published for any day
which is a Business Day, the average of the rates for the two Business Days
closest to such Business Day on which such rate is so published; PROVIDED that,
if such publication is terminated or suspended by The Wall Street Journal, the
Program Administrator shall specify a commercially reasonable alternate source
for determining such rate. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
"PRIVATE AUTHORIZATIONS" means all franchises, permits, licenses,
approvals, consents and other authorizations of all Persons (other than
Authorities) including those with respect to trademarks, service marks, trade
names, copyrights, computer software programs and technical and other knowhow.
X-19
<PAGE> 75
"PROGRAM" means the program established by the Master Agreement, the
Purchase Agreement, the Program Servicer Agent Agreement and the Program
Collection Agency Agreement pursuant to which the Purchaser will purchase the
Purchased Portfolio Assets.
"PROGRAM ADMINISTRATOR" shall have the meaning assigned to such term
in the preamble to the Master Agreement.
"PROGRAM COLLECTION ACCOUNT" shall have the meaning assigned to such
term in Section 4.01 of the Program Collection Agency Agreement.
"PROGRAM COLLECTION AGENCY AGREEMENT" means the Pioneer Program
Funding and Collection Agency Agreement, dated as of the date of the Master
Agreement substantially in the form of Exhibit C to the Master Agreement among
the Purchaser, the Program Administrator, the Distributor and the Collection
Agent.
"PROGRAM COLLECTIONS" means (i) all amounts paid or payable in
respect of the Portfolio Assets relating to each Fund by the applicable Fund or
Company or by each shareholder of such Fund that in either case are allocable to
the Purchased Portfolio Assets in accordance with the Allocation Procedures and
(ii) all proceeds of the foregoing.
"PROGRAM COSTS" means the aggregate Program Servicer Agent fees and
expenses, the aggregate Collection Agent fees and expenses and reasonable
counsel and accountants fees and expenses, the reasonable fees and expenses of
other customary service providers and the amounts due under any interest rate
protection agreements in connection with the Program; PROVIDED that amounts due
under any interest rate protection agreements shall be allocated to the
Purchaser pursuant to Section 4.03(b)(ii) of the Program Collection Agency
Agreement.
"PROGRAM DOCUMENTS" means each Distributor's Contract, each
Distribution Plan, each Prospectus, the Master Agreement, the Program Collection
Agency Agreement, the Purchase Agreement, each Transfer Agent's Agreement, each
Advisory Agreement, each Selling Agent's Agreement, each Irrevocable Payment
Instruction and the Program Servicer Agent Agreement, and
all exhibits, schedules and annexes any thereof.
"PROGRAM SERVICER AGENT" means the Distributor in its capacity as
program servicer agent under the Program Servicer Agent Agreement.
"PROGRAM SERVICER AGENT AGREEMENT" means the Pioneer Program
Servicer Agent Agreement dated the date of the Master Agreement substantially in
the form of Exhibit B to the Master Agreement, among the Purchaser, the Program
Administrator and the Distributor, as Program Servicer Agent.
"PROGRAM SERVICING PROCEDURES" means the Pioneer Program Servicing
Procedures in the form of Exhibit A to the Program Servicer Agent Agreement and
as amended from time to time by the Program Servicer Agent with the prior
written consent of the Program Administrator.
X-20
<PAGE> 76
"PROSPECTUS" means with respect to any Fund the prospectus filed
with the SEC as a part of the related Company's registration statement on Form
N-1A, as amended, and shall include the related statement of additional
information included in such registration statement.
"PURCHASE" means the acquisition of Portfolio Assets by the
Purchaser pursuant to the Purchase Agreement and the Master Agreement.
"PURCHASE AGREEMENT" means the Pioneer Program Purchase Agreement
dated the date of the Master Agreement substantially in the form of Exhibit A to
the Master Agreement, between the Purchaser and the Distributor.
"PURCHASE CUT-OFF DATE" means, in respect of the initial Purchase
Date, the Initial Purchase Cut-Off Date and in respect of each Purchase Date,
the date specified as such in the Purchase Notice delivered in respect of such
Purchase Date.
"PURCHASE DATE" means the date of each purchase of Portfolio Assets
pursuant to the Purchase Agreement.
"PURCHASE LIMIT" means at any time, $40,000,000 (or such other
amount as shall be agreed to in writing by the Purchaser, the Program
Administrator and the Distributor) less the outstanding principal amount of
Purchaser Warehouse Funding Debt relating to Purchased Portfolio Assets acquired
by the Purchaser from the Distributor on Purchase Dates other than the Initial
Purchase Date; PROVIDED, that on and after the Purchase Termination Date, the
Purchase Limit shall be deemed to be zero for all purposes.
"PURCHASE NOTICE" means each notice delivered pursuant to the
Purchase Agreement substantially in the form of Exhibit A to the Purchase
Agreement.
"PURCHASE PRICE" means in respect of the initial Purchase, the
Initial Purchase Price and with respect to the Portfolio Assets relating to any
Fund to be purchased on each subsequent Purchase Date, an amount equal to the
product of (A) the Purchase Price Percentage relating to such Fund, and (B) the
total issue price of the Shares of such Fund relating to such Portfolio Assets;
PROVIDED, HOWEVER, that in the event that the Distributor or any other Sponsor
Entity has received any Program Collections in respect of such Portfolio Assets
to be purchased hereunder prior to the purchase thereof by the Purchaser, the
amount of such Program Collections shall be subtracted from the Purchase Price
for such Portfolio Assets.
"PURCHASE PRICE PERCENTAGE" means, with respect to the Portfolio
Assets relating to any Fund, the percentages set forth opposite the name of such
Fund under the heading "Purchase Price Percentages" on Schedule I to the
Purchase Agreement, determined with reference to the applicable Fund.
"PURCHASE TERMINATION DATE" means the third anniversary of the date
of the Master Agreement, or such later date as shall be agreed to in writing by
the Purchaser and the Program Administrator, or such earlier date which is the
date of occurrence of an Event of Termination unless the Program Administrator
shall waive such Event of Termination in writing.
X-21
<PAGE> 77
"PURCHASED PORTFOLIO ASSETS" means with respect to any Fund, as of
any date, the Portfolio Assets allocated to the Purchaser, in accordance with
the Purchase Agreement and the Allocation Procedures, together with the Program
Collections and Ancillary Rights with respect thereto and all proceeds thereof,
which is intended to include all Asset Based Sales Charges and Contingent
Deferred Sales Charges payable by or in respect of such Fund arising out of the
Shares attributed to the Purchaser.
"PURCHASER" shall have the meaning assigned to such term in the
preamble to the Master Agreement.
"PURCHASER CDSC SUB-ACCOUNT" shall have the meaning assigned to such
term in Section 4.05(a) of the Program Collection Agency Agreement.
"PURCHASER'S ASSET BASED SALES CHARGE PORTION" means the portion of
the Portfolio Assets relating to all Funds constituting Asset Based Sales
Charges allocable to the Purchaser pursuant to the Allocation Procedures.
"PURCHASER'S CDSC PORTION" means the portion of the Portfolio Assets
relating to all Funds constituting Contingent Deferred Sales Charges allocable
to the Purchaser pursuant to the Allocation Procedures.
"PURCHASER'S DEPOSITED FUNDS" means funds of the Purchaser on
deposit in the Purchaser's Funding Account.
"PURCHASER'S FUNDING ACCOUNT" shall have the meaning assigned to
such term in Section 3.01 of the Program Funding and Collection Agency
Agreement.
"PURCHASER'S INVESTMENT EARNINGS" shall have the meaning assigned to
such term in Section 4.03(c) of the Program Collection Agency Agreement.
"PURCHASER'S PORTION" means, on any date, the sum of (i) Purchaser's
CDSC Portion, (ii) Purchaser's Asset Based Sales Charge Portion, (iii) the
Purchaser's Investment Earnings, and (iv) all other amounts to which the
Purchaser is entitled under the Program Documents which are deposited in the
Program Collection Account.
"PURCHASER'S REMITTANCE ACCOUNT" means the account of the Purchaser
maintained by Bankers Trust Company, at Four Albany Street, New York, New York
10006, ABA No.: 021001033, Acct. No.: 01419647 for further credit to 23486, Ref.
"Pioneer" or such other account as the Purchaser shall designate in writing to
the Program Administrator and the Collection Agent.
"PURCHASER WAREHOUSE FUNDING DEBT" means indebtedness incurred by
the Purchaser pursuant to the funding arrangements established by the Purchaser
for the purpose of funding the Purchase Price paid by it for Purchaser's
Purchased Portfolio Assets acquired pursuant to the Program.
X-22
<PAGE> 78
"PURCHASER WAREHOUSE PLEDGE AGREEMENT" shall have the meaning
assigned to such term in Section 5.01 of the Program Collection Agency
Agreement.
"REDEMPTION FEATURE" means with respect to any Share of any Fund,
the rules applied to determine the order in which Free Shares and Commission
Shares owned of record for any Shareholder account are redeemed.
"REDEMPTION THRESHOLD DATE" means the first day during any three
calendar month period on which the aggregate Net Asset Values (determined with
respect to each redeemed Share as of the date of such redemption) of all Shares
relating to Purchased Portfolio Assets, which were redeemed in Free Redemptions
during the portion of such period up to and including the day in question,
equals or exceeds the product of (a) the average of the aggregate Net Asset
Values of all Funds as of the three immediately preceding Calculation Dates, and
(b) one half of one percent (0.5%).
"REINVESTED SHARE" means, in respect of any Fund, a Share which is
issued by such Fund as a result of the reinvestment of dividends or other
distributions, whether ordinary income, capital gain or exempt-interest
dividends or other distributions, of such Fund.
"REFERENCE DATE" means as of any point in time the later of December
31, 1997 or the last day of any calendar year for which more than sixty (60)
days has passed since the Parent delivered to the Program Administrator a copy
of its annual audited consolidated financial statements for such calendar year.
"RELATED COLLECTIONS" means (i) all amounts paid or payable in
respect of the Portfolio Assets relating to each Fund by the applicable Fund or
Company or by each shareholder of such Fund, subject to the terms of the Program
Documents, and (ii) all proceeds of the foregoing, excluding, in the case of (i)
above, all Program Collections.
"RESPONSIBLE OFFICER" means, (i) with respect to any Person which is
a corporate entity or business trust other than Bankers Trust Company, any
officer of a level of vice president or Person with like authority or employee
of such Person designated by such Person with delegated responsibility and
authority for the matters relating to such Person's participation in the
transactions contemplated by the Master Agreement, the Purchase Agreement, the
Program Servicer Agent Agreement, and the Program Collection Agency Agreement,
including the person to whom notices to such Person are to be directed as
identified pursuant to the notice provisions of any thereof, and (ii) with
respect to Bankers Trust Company, any officer assigned to the Corporate Trust
Office, including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary or any other officer of
Bankers Trust Company customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of the Program Collection Agency
Agreement, and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
X-23
<PAGE> 79
"RULE 12b-1" means Rule 12b-1 adopted under the Investment Company
Act, as the same may from time to time be amended, supplemented or modified.
"SALES CHARGE" shall have the meaning set forth in Section
2830(b)(8) of the Conduct Rules.
"SEC" means the United States Securities and Exchange Commission or
any other governmental authority of the United States of America at the time
administrating the Securities Act, the Investment Company Act or the Exchange
Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder.
"SELLING AGENT" means each Person which acts as direct or indirect
distributor, underwriter, broker, dealer or agent for the Shares of a Fund
together with its successors and assigns.
"SELLING AGENT'S AGREEMENT" means each agreement pursuant to which a
Person undertakes to act as Selling Agent in respect of the Shares of any Fund.
"SERVICE FEE" shall have the meaning set forth in Section 2830(b)(9)
of the Conduct Rules.
"SHAREHOLDER" means, in respect of any Fund, a holder of Shares
of such Fund.
"SHAREHOLDER SERVICING FEE" means the fees payable by a Fund or by a
Company with respect to the Shares of a Fund pursuant to the Distributor's
Contract in consideration of services to holders of Shares of such Fund.
"SHARES" means in respect of any Fund, any Class B shares of such
Fund.
"SIGNIFICANT AFFILIATE" means (i) any corporation or holding company
or similar entity which after the date hereof owns or controls the majority of
the outstanding voting securities of the Distributor, or (ii) any Affiliate of
the Distributor which is a subsidiary of the Parent if the Parent's beneficial
interest in the total assets of such subsidiary is equal to or greater than ten
percent (10%) of the total assets of the Parent, and in any event shall include
the Parent, the Advisor and any Transfer Agent which is a Sponsor Entity.
"SIPA" means the Securities Investor Protection Act of 1970, as
amended from time to time and the regulations promulgated and the rulings issued
thereunder.
"SPONSOR ENTITIES" means each of the Parent, the Distributor (as
Distributor and Program Servicer Agent), the Advisor, and each Transfer Agent
which is an Affiliate of the Parent.
X-24
<PAGE> 80
"STANDARD & POOR'S" means Standard & Poor Ratings Services, a
division of McGraw-Hill, Inc.
"SUCCESSOR" shall have the meaning assigned to such term in Section
5.02 of the Program Servicer Agent Agreement.
"TAXES" shall have the meaning assigned to such term in Section 8.05
of the Master Agreement.
"TRANSFER AGENT" means any Person in its capacity as transfer
agent for the Funds.
"TRANSFER AGENT'S AGREEMENT" means each agreement pursuant to which
a Transfer Agent undertakes to act as transfer agent for any Fund.
"TRUE SALE" means, with respect to any transfer of an asset or
property, the sale of an ownership interest in such asset or property (not the
granting of a security interest therein), within the meaning of all Applicable
Law, including the UCC and the Bankruptcy Code, and, without limiting the
generality of the foregoing, which is enforceable against all creditors of the
Person making such transfer and all Affiliates of such Person in accordance with
the terms of such transfer, notwithstanding the bankruptcy, insolvency or
reorganization of, or similar proceeding with respect to, or the appointment of
a receiver or conservator of the Person making such transfer or any Affiliate of
such Person, and in connection with any proceeding under the Bankruptcy Code, in
respect of which the Person making such transfer or any Affiliate of such Person
is the "debtor," as such term is used in the Bankruptcy Code, the Purchased
Portfolio Assets and the proceeds thereof will not be deemed the property of the
debtor.
"UCC" means the Uniform Commercial Code, as from time to time in
effect in the applicable jurisdictions.
"UNAMORTIZED GROSS PURCHASE AMOUNT" means, in respect of the
Purchaser's Purchased Portfolio Assets relating to any Fund, as of any date of
determination, (i) the Maximum Aggregate Sales Charge Allowable, minus (ii) the
aggregate amounts paid by the applicable Company (including amounts paid by the
holders of Shares of such Fund in respect of Contingent Deferred Sales Charges)
in respect of such Fund and deposited in the Program Collection Account and
applied and distributed to the payment of such Purchaser's Purchased Portfolio
Assets in accordance with the terms of the Program Collection Agency Agreement
through such date of determination.
"YEAR 2000 PROBLEM" shall mean the risk that computer applications
used by it may be unable to recognize and properly perform date-sensitive
functions involving certain dates during or after the year 2000.
X-25
<PAGE> 81
Exhibit A To
Pioneer Program
Master Agreement
================================================================================
PIONEER PROGRAM
PURCHASE AGREEMENT
Dated as of September 30, 1988
between
PIONEER FUNDS DISTRIBUTOR, INC.,
as Distributor
and
PLT FINANCE, L.P.,
as Purchaser
================================================================================
<PAGE> 82
TABLE OF CONTENTS
Page
----
ARTICLE I RULES OF CONSTRUCTION; DEFINITIONS
1.01. Rules of Construction..................................... 1
1.02. Definitions............................................... 1
ARTICLE II PURCHASE; GENERAL
2.01. Purchase.................................................. 1
2.02. Purchase Notices.......................................... 2
2.03. Transfers and Payments.................................... 2
2.04. Sale and Purchase......................................... 2
2.05. Recording of Sale and Transfer............................ 3
2.06. Purchaser's Collection Rights............................. 3
2.07. Continuing Obligations.................................... 3
2.08. Further Assurances........................................ 3
ARTICLE III SECURITY INTEREST
ARTICLE IV MISCELLANEOUS
4.01. Modifications in Writing.................................. 4
4.02. Notices................................................... 4
4.03. Binding Effect; Assignment................................ 4
4.04. Governing Law............................................. 4
4.05. Severability of Provisions................................ 4
SCHEDULES
SCHEDULE I PURCHASE PRICE PERCENTAGES
EXHIBITS
EXHIBIT A FORM OF PURCHASE NOTICE
i
<PAGE> 83
PIONEER PROGRAM
PURCHASE AGREEMENT
PIONEER PROGRAM PURCHASE AGREEMENT, dated as of September 30,
1998 (this "AGREEMENT"), between PIONEER FUNDS DISTRIBUTOR, INC. (the
"DISTRIBUTOR") and PLT FINANCE, L.P. (the "PURCHASER").
W I T N E S S E T H:
WHEREAS, the Distributor and the Purchaser are parties to that
certain Pioneer Program Master Agreement dated as of the date hereof with the
"Parent," "Advisor," "Collection Agent" and "Program Administrator," each as
defined therein (the "MASTER AGREEMENT"); and
WHEREAS, the Distributor desires to sell to the Purchaser, and the
Purchaser desires to purchase from the Distributor, from time to time, on the
terms and subject to the conditions specified in this Agreement and the Master
Agreement, the Purchased Portfolio Assets (defined as hereinafter provided);
NOW, THEREFORE, in consideration of the foregoing premises, and the
mutual covenants and agreements herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
RULES OF CONSTRUCTION; DEFINITIONS
Section 1.01. RULES OF CONSTRUCTION. The rules of construction set
forth in Schedule X to the Master Agreement shall be applied to this Agreement.
Section 1.02. DEFINITIONS. Capitalized terms not expressly defined
herein, which are defined in Schedule X to the Master Agreement, shall have the
same meanings herein as in said Schedule.
ARTICLE II
PURCHASE; GENERAL
Section 2.01 PURCHASE. On the Initial Purchase Date, the Distributor
hereby agrees to sell, transfer, convey and assign to the Purchaser, and the
Purchaser hereby agrees to purchase, in each case on the terms and subject to
the conditions set forth in this Agreement and in the Master Agreement, all of
the Distributor's right, title and interest in, to and under all Purchased
Portfolio Assets, arising directly and indirectly out of Commission Shares of
each Fund the Date of Original Issuance of which occurs on or prior to the
Initial Purchase Cut-Off Date, and the Purchaser shall pay to the Distributor a
purchase price in the amount of
<PAGE> 84
$62,330,000 subject to adjustments (which may be positive or negative) to be
determined prior to the Initial Purchase Funding Date by the Purchaser in
accordance with the next sentence (such adjusted amount, the "INITIAL PURCHASE
Price"). Adjustments to the $62,330,000 figure will be calculated using the same
methodology used to arrive at the $62,330,000 figure taking into account the
additional information required to be submitted pursuant to Section 5.01(v) of
the Master Agreement in order to reflect, on an individual Fund basis, Share
aging, cost basis and Net Asset Value of the Purchased Portfolio Assets as of
the close of business on September 30, 1998. On each Purchase Date (other than
the initial Purchase Date) until the Purchase Termination Date, the Distributor
hereby agrees to sell, transfer, convey and assign to the Purchaser, and the
Purchaser hereby agrees to purchase from the Distributor, in each case on the
terms and subject to the conditions set forth in this Agreement and in the
Master Agreement, all of the Distributor's right, title and interest in, to and
under all Purchased Portfolio Assets specified in the related Purchase Notice in
accordance with Section 2.02, such purchases to occur on Purchase Dates
established pursuant to Sections 2.02 and 2.03.
Section 2.02. PURCHASE NOTICES. Subject to the satisfaction or
waiver by the Parent of Section 3.03(k) of the Master Agreement, monthly after
the date hereof and prior to the Purchase Termination Date, the Distributor
shall transmit or shall cause to be transmitted to the Program Administrator and
the Purchaser (with a copy to the Funding and Collection Agent), no later than
10:00 a.m. (New York City time) three Business Days prior to such proposed
Purchase Date, by facsimile transmission, a Purchase Notice establishing a
Purchase Date. The Distributor represents and warrants that the information set
forth in each Purchase Notice is true and correct.
Section 2.03. TRANSFERS AND PAYMENTS. Subject to the terms and
conditions set forth herein and in the Master Agreement, the Distributor shall
convey to the Purchaser on each Purchase Date, and the Purchaser shall deposit
in the Purchaser's Funding Account funds sufficient to enable the Funding and
Collection Agent to pay to the Distributor the Purchase Price for, all Purchased
Portfolio Assets arising directly or indirectly out of Commission Shares of each
Fund the Date of Original Issuance of which occurs on or prior to the Purchase
Cut-Off Date specified in the Purchase Notice for the Purchase Date in question
and after (i) the Inception Date for such Fund, in the case of the initial
Purchase Date following such Inception Date or (ii) the immediately preceding
Purchase Cut-Off Date for all other Purchase Dates; PROVIDED, however, that in
the case of the Purchase on the Initial Purchase Date, the amount of the cash
deposit and payment required shall be due, not on the Initial Purchase Date, but
rather on the Initial Purchase Funding Date and shall be the excess of (a) the
Initial Purchase Price minus (b) One Hundred Thousand Dollars ($100,000), and
the Purchaser shall deliver to the Distributor on the Initial Purchase Funding
Date an unsecured promissory note dated the Initial Purchase Date in the
principal amount of One Hundred Thousand Dollars ($100,000) payable on January
2, 1999 with simple interest at the rate of 7% per annum from and excluding the
date of the Initial Purchase through and including January 2, 1999, and the
Distributor hereby agrees to accept such cash payment and promissory note in
full payment of the Initial Purchase Price. Each Purchase Cut-Off Date shall be
the last Business Day of a calendar month.
Section 2.04. SALES AND PURCHASES. (a) The parties to this Agreement
intend that the transaction contemplated by Section 2.01 shall be, and shall be
treated as, a purchase by the Purchaser and a sale by the Distributor of the
Purchased Portfolio Assets relating thereto, constituting a True Sale, and shall
not be treated as a lending transaction. The sale of Purchased
2
<PAGE> 85
Portfolio Assets by the Distributor hereunder shall be without recourse to the
Distributor, hereunder; it being understood that the Purchaser in making each
Purchase is relying on the representations, warranties and covenants of the
Distributor and other Sponsor Entities contained in the Master Agreement.
(b) The parties agree, to the fullest extent they may lawfully do
so, that the Purchase Price for the purchase and sale of the Purchased Portfolio
Assets relating thereto pursuant to this Agreement represents reasonably
equivalent value for the transfer of the same by the Distributor to the
Purchaser pursuant to this Agreement.
Section 2.05. RECORDING OF SALES AND TRANSFERS. In connection with
the sale and conveyance of Purchased Portfolio Assets pursuant to this
Agreement, the Distributor shall indicate on its books and records that all such
Purchased Portfolio Assets have been sold or conveyed to the Purchaser. In
addition, the Distributor shall not carry as its assets any Purchased Portfolio
Assets sold to the Purchaser on its accounting records, and the Distributor
agrees that all such Purchased Portfolio Assets have been and will be, as
contemplated by the terms of this Agreement, transferred and sold to the
Purchaser and carried on the Purchaser's accounting records.
Section 2.06. PURCHASER'S COLLECTION RIGHTS. The Purchaser has
appointed the Program Servicer Agent to, on the Purchaser's behalf, and pursuant
to the Program Servicer Agent Agreement, the Program Servicer Agent has agreed
to, take all actions it considers reasonable and in accordance with the Program
Servicer Agent Agreement to collect from the respective Companies and Funds all
payments in respect of the Purchased Portfolio Assets as and when the same shall
become due. The Distributor hereby irrevocably authorizes and empowers the
Purchaser and the Program Servicer Agent, on behalf of the Purchaser, to demand,
sue for, collect and receive payment of any funds due with respect to the
Purchased Portfolio Assets in the name of the Distributor, if required in the
good faith judgment of the Purchaser or the Program Servicer Agent; PROVIDED,
HOWEVER that so long no Event of Termination shall have occurred and be
continuing, the Purchaser and the Program Servicer Agent shall provide the
Distributor with at least ten (10) Business Days' prior notice before commencing
any such action.
Section 2.07. CONTINUING OBLIGATIONS. Notwithstanding any other
provision of this Agreement, to the extent that any obligation of the
Distributor under, pursuant to and in connection with the Purchased Portfolio
Assets remains unperformed or executory, the Distributor hereby appoints the
Program Servicer Agent, on its behalf but for the benefit of the Purchaser, to
perform such obligation to the same extent as if the purchase and sale
contemplated hereby had not taken place, and the Purchaser shall not be required
or obligated in any manner to perform or fulfill any of the obligations of
Distributor under, pursuant to or in connection with any Purchased Portfolio
Assets.
Section 2.08. FURTHER ASSURANCES. The Distributor agrees to do such
further acts and things, and to execute and deliver to the Purchaser such
additional assignments, agreements, powers and instruments, as are reasonably
required by the Purchaser to carry into effect the purposes of this Agreement or
to better assure and confirm unto the Purchaser its rights, power and remedies
hereunder.
3
<PAGE> 86
ARTICLE III
SECURITY INTEREST
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and to induce the Purchaser to purchase the Purchased
Portfolio Assets hereunder, the Distributor hereby grants to the Purchaser, in
order to secure the Purchaser's rights under this Agreement in the event the
purchase of any Purchased Portfolio Assets by the Purchaser is recharacterized
as a loan from the Purchaser to the Distributor, a security interest in any
right, title and interest in and to such Purchased Portfolio Assets, whether now
owned or hereafter acquired, that remain property of the Distributor's estate
notwithstanding this Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.01. MODIFICATIONS IN WRITING. This Agreement and any term
or provision hereof may only be amended, modified or waived by a written
instrument executed by the parties hereto and by any additional Persons whose
execution is required pursuant to Section 8.01 of the Master Agreement.
Section 4.02. NOTICES. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be given or made in accordance with Section 8.03 of the Master
Agreement.
Section 4.03. BINDING EFFECT; ASSIGNMENT. This Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. No party shall assign any of its rights or
obligations hereunder without the prior written consent of the other parties
hereto and of any additional Persons whose consent is required pursuant to
Section 8.07 of the Master Agreement; provided that the Purchaser's right, title
and interest in, to and under this Agreement, including all of the Purchaser's
right, title and interest in and to Purchased Portfolio Assets may be assigned
as contemplated by the Master Agreement without the consent of the Distributor.
Section 4.04. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 4.05. SEVERABILITY OF PROVISIONS. Any provisions of this
Agreement which are prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the
4
<PAGE> 87
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
5
<PAGE> 88
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the day
and date first above written.
PIONEER FUNDS DISTRIBUTOR, INC.,
as Distributor
By: /s/ Robert L. Butler
----------------------------
Name: Robert L. Butler
Title: President
6
<PAGE> 89
PLT FINANCE, L.P.,
as Purchaser
By: PLT FINANCE, INC.,
as General Partner
By: /s/ Robert T. Fleisher
----------------------------
Name: Robert T. Fleisher
Title: Vice President
7
<PAGE> 90
Schedule I
to
Pioneer Program
Purchase Agreement
Confidential material deleted and filed separately with the Securities and
Exchange Commission. Asterisks denote such omissions.
PURCHASE PRICE PERCENTAGES
COMPANY:
All Companies
PURCHASE PRICE
FUNDS SHARES PERCENTAGE
----- ------ --------------
1. Pioneer Short-Term Class B Shares [**]
Income Trust
2. Pioneer Intermediate Class B Shares [**]
Tax Free Fund
3. All other Funds Class B Shares [**]
I-1
<PAGE> 91
Exhibit A
to
Pioneer Program
Purchase Agreement
FORM OF PIONEER PROGRAM PURCHASE NOTICE
PIONEER PROGRAM
PLT FINANCE, L.P.
as Purchaser
PUTNAM, LOVELL, DE GUARDIOLA & THORNTON INC.
as Program Administrator
Re: Pioneer Program Purchase Agreement dated as of September 30,
1998 (the "PURCHASE AGREEMENT") between Pioneer Funds Distributor,
Inc. and PLT Finance, L.P.
Pursuant to Section 2.02 of the above-referenced Purchase Agreement, you
are hereby notified that on _____________, 199_ (the "PURCHASE DATE"), the
undersigned proposes, subject to the terms and conditions set forth in the
Purchase Agreement and the Master Agreement, to sell to PLT Finance, L.P.,
certain Purchased Portfolio Assets relating to each of the Funds, as set forth
in Schedule I attached hereto. The Purchase Cut-Off Date and the Purchase Price
for such Portfolio Assets are set forth on Schedule I attached hereto.
Capitalized terms used herein unless otherwise defined herein shall have the
meanings assigned to such terms in the Purchase Agreement.
The undersigned represents and warrants that:
1. the conditions precedent set forth in the Master Agreement and
the Purchase Agreement have been satisfied and will be satisfied on the
Purchase Date; and
2. Schedule I hereto is true, correct and complete and accurately
describes the Portfolio Assets to be purchased by the Purchaser on the Purchase
Date, and the Unamortized Gross Purchase Amount in respect of each such
Portfolio Assets is properly represented on Schedule I.
PIONEER FUNDS DISTRIBUTOR, INC.
BY:_____________________________
Authorized Signatory
<PAGE> 92
Schedule I to
Exhibit A to
Pioneer
Program
Purchase
Agreement
Purchase Date: _________________
Aggregate Purchase Price: _________________
Purchase Cut-Off Date: _________________
Commission Share Sales: _________________
Unamortized Gross Purchase Amount: _________________
<PAGE> 93
Exhibit B To
Pioneer Program
Master Agreement
================================================================================
PIONEER PROGRAM
SERVICER AGENT AGREEMENT
Dated as of September 30, 1998
among
PLT FINANCE, L.P.,
as Purchaser,
PUTNAM, LOVELL, DE GUARDIOLA & THORNTON INC.,
as Program Administrator
and
PIONEER FUNDS DISTRIBUTOR, INC.,
as Program Servicer Agent
================================================================================
<PAGE> 94
TABLE OF CONTENTS
Page
----
ARTICLE I RULES OF CONSTRUCTION; DEFINITIONS
1.01. Rules of Construction............................. 1
1.02. Definitions....................................... 1
ARTICLE II ADMINISTRATION AND SERVICING OF PORTFOLIO ASSETS
2.01. Duties of the Program Servicer Agent.............. 1
2.02. Appointment of the Program Servicer Agent as
Agent for the Purchaser......................... 2
2.03. Continuing Covenants of the Program Servicer
Agent........................................... 2
2.04. No Offset......................................... 3
ARTICLE III INVESTOR REPORTS; RECORDKEEPING; COMPENSATION
3.01. Investor Reports.................................. 3
3.02. Recordkeeping..................................... 3
3.03. Servicing Expenses and Compensation............... 4
ARTICLE IV THE PROGRAM SERVICER AGENT
4.01. Program Servicer Agent Not to Resign.............. 4
4.02. No Assignment..................................... 4
4.03. Delegation of Duties.............................. 4
ARTICLE V REMOVAL FOR CAUSE; SUCCESSOR PROGRAM SERVICER
AGENT
5.01. Removal for Cause ................................ 4
5.02. Appointment of Successor Program Servicer
Agent........................................... 5
5.03. No Effect on Other Parties........................ 5
i
<PAGE> 95
5.04. Rights Cumulative................................. 5
ARTICLE VI TERMINATION; REMOVAL AND RESIGNATION; TRANSFER
OF SERVICING FUNCTION
6.01. Removal and Resignation........................... 6
6.02. Transfer of Servicing Function.................... 6
ARTICLE VII MISCELLANEOUS PROVISIONS
7.01. Modifications in Writing.......................... 6
7.02. Notices........................................... 6
7.03. Binding Effect; Assignment........................ 6
7.04 Governing Law..................................... 6
7.05. Severability...................................... 7
7.06. Survival.......................................... 7
EXHIBITS
Exhibit A Program Servicing Procedures
ii
<PAGE> 96
PIONEER PROGRAM
SERVICER AGENT AGREEMENT
PIONEER PROGRAM SERVICER AGENT AGREEMENT, dated as of September 30,
1998, among PLT FINANCE, L.P. (the "PURCHASER"), PUTNAM, LOVELL, DE GUARDIOLA &
THORNTON INC., as program administrator (the "PROGRAM ADMINISTRATOR") and
PIONEER FUNDS DISTRIBUTOR, INC. (the "DISTRIBUTOR" or, in its capacity as
servicer agent hereunder, the "PROGRAM SERVICER AGENT").
W I T N E S S E T H:
WHEREAS, the Distributor, the Purchaser and the Program
Administrator are parties to that certain Pioneer Program Master Agreement dated
as of the date hereof with the "Parent," "Advisor" and "Collection Agent" as
defined therein (the "MASTER AGREEMENT") pursuant to which the Purchaser shall
purchase the Purchased Portfolio Assets (defined as hereinafter provided) upon
the terms and subject to the conditions described therein; and
WHEREAS, it is a condition precedent in the Master Agreement that
the parties hereto enter into this Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants and agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
RULES OF CONSTRUCTION; DEFINITIONS
Section 1.01. RULES OF CONSTRUCTION. The rules of construction
set forth in Schedule X to the Master Agreement shall be applied to this
Agreement.
Section 1.02. DEFINITIONS. Capitalized terms not expressly
defined herein which are defined in Schedule X to the Master Agreement, shall
have the same meanings herein as in said Schedule.
ARTICLE II
ADMINISTRATION AND SERVICING OF PORTFOLIO ASSETS
Section 2.01. DUTIES OF THE PROGRAM SERVICER AGENT. The Program
Servicer Agent's duties shall be: (i) to exercise all of the Distributor's and
the Purchaser's rights (including, to the extent acquired by the Purchaser, all
of the Distributor's rights) under the Distributor's Contracts, the Distribution
Plans, the Prospectuses, each Irrevocable Payment
<PAGE> 97
Instruction and at law or equity to cause each Fund (or in respect of any Fund
which constitutes a portfolio, to cause the related Company in respect of such
Fund) to pay to the Program Collection Account when due all amounts due from
such Fund or its shareholders in respect of outstanding shares of the Fund which
relate to Purchased Portfolio Assets relating to each Fund; (ii) the recording
of all Portfolio Assets due under or in connection with each Fund; (iii)
investigating delinquencies; (iv) responding to inquiries of the Purchaser and
the Program Administrator; (v) enforcing the Purchaser's rights with respect to
the Purchased Portfolio Assets relating to each Fund; (vi) accounting for
Program Collections in respect of the Purchased Portfolio Assets relating to
each Fund; (vii) furnishing the Investor Report and other monthly statements and
reports relating to Portfolio Assets as required by this Agreement and the
Master Agreement; (viii) performing any and all obligations of the Distributor
under, pursuant to and in connection with the Purchased Portfolio Assets in
accordance with Section 2.05 of the Purchase Agreement; and (ix) consistent with
the terms herein, to follow the Program Servicing Procedures. Subject to the
limitations contained herein, the Program Servicer Agent shall have full power
and authority, acting alone, to do any and all things in connection with such
management, servicing, administration, performance and collection which it deems
necessary or appropriate but in no case shall the Program Servicer Agent take
any action under this Section 2.01 inconsistent with the provisions of the
Master Agreement, the Program Collection Agency Agreement or which gives rise to
the reasonable possibility of an Adverse Effect. The Program Servicer Agent has
no right to receive payments on account of Purchased Portfolio Assets for its
own account. The Program Servicer Agent is required to take such actions as may
be necessary or advisable to collect Purchased Portfolio Assets, but is not
authorized to extend, modify or amend any Purchased Portfolio Assets without the
prior consent of the Program Administrator and the Purchaser.
Section 2.02. APPOINTMENT OF THE PROGRAM SERVICER AGENT AS AGENT FOR
THE PURCHASER. The Purchaser hereby appoints Pioneer Funds Distributor, Inc. as
Program Servicer Agent under this Agreement. The Purchaser shall furnish the
Program Servicer Agent, upon the Program Servicer Agent's written request, with
such powers of attorney and other documents reasonably necessary to enable the
Program Servicer Agent to carry out its servicing and administrative duties
hereunder.
Section 2.03. CONTINUING COVENANTS OF THE PROGRAM SERVICER Agent.
The Program Servicer Agent hereby covenants and agrees that it shall at all
times:
(a) punctually perform and observe all of its obligations and
agreements contained herein;
(b) carry out its obligations hereunder in accordance with all
Applicable Laws (except where the failure to comply with Applicable Laws could
not reasonably be expected to give rise to an Adverse Effect) and with due care,
using at least the degree of skill, care and attention followed by responsible
institutions servicing comparable mutual fund distribution plans and
distribution agreements and in accordance with the terms of this Agreement and
the Program Servicing Procedures in effect from time to time and with
instructions received from the Purchaser;
2
<PAGE> 98
(c) do nothing (in its capacity as Program Servicer Agent) which
could reasonably be expected to (i) impair or otherwise adversely affect the
rights of the Purchaser in any Purchased Portfolio Assets or under any Program
Document or the collectibility of the Purchased Portfolio Assets relating to any
Fund, or (ii) otherwise give rise to an Adverse Effect;
(d) provide such information to the Program Administrator as it may
reasonably request from time to time with respect to the Portfolio Assets or
which is otherwise reasonably necessary, in the reasonable judgment of the
Program Administrator, to make any determination in connection with any consent,
waiver or other action which may be given or taken under or in connection with
this Agreement or the other Program Documents; and
(e) keep in full force and effect its existence and good standing
under the laws of the jurisdiction of its incorporation and obtain and preserve
its qualification to do business as a foreign corporation in each jurisdiction
in which the nature of its business or the performance of its obligations under
this Agreement requires such qualification, except to the extent that the
failure to so qualify could not reasonably be expected to have an Adverse
Effect.
Section 2.04. NO OFFSET. The obligations of the Program Servicer
Agent under this Agreement shall not be subject to any defense, counterclaim or
right of offset which the Distributor (as Program Servicer Agent or otherwise)
has or may have against the Purchaser, the Program Administrator or any other
Person, whether in respect of this Agreement, any other Program Document, the
Portfolio Assets relating to any Fund or otherwise.
ARTICLE III
INVESTOR REPORTS; RECORDKEEPING;
COMPENSATION
Section 3.01. INVESTOR REPORTS. Monthly on or prior to the 10th day
of each calendar month, the Program Servicer Agent shall provide the Program
Administrator with an Investor Report. All monthly activity reports and
electronic files related to each Investor Report will be transmitted to the
Program Administrator on or prior to the 5th Business Day of each calendar month
in accordance with the Program Servicing Procedures.
Section 3.02. RECORDKEEPING. The Program Servicer Agent shall
maintain accurate records with respect to the Portfolio Assets relating to each
Fund and shall retain all information relating directly to, or maintained in
connection with, the servicing of such Portfolio Assets, at the offices of the
Program Servicer Agent, and shall give the Purchaser, the Program Administrator,
any Permitted Designees or any of their agents or representatives access to all
such information at all reasonable times, on reasonable notice during business
hours. The Program Servicer Agent shall, at the reasonable request of the
Purchaser or the Program Administrator, deliver to them all such information
which is reasonably necessary for evaluating the servicing of the Portfolio
Assets relating to each Fund.
3
<PAGE> 99
Section 3.03. SERVICING EXPENSES AND COMPENSATION. The Program
Servicer Agent shall pay all expenses and charges it shall incur in the
performance of its duties hereunder and will not be entitled to reimbursement
for any such expenses or any compensation for its services hereunder.
ARTICLE IV
THE PROGRAM SERVICER AGENT
Section 4.01. PROGRAM SERVICER AGENT NOT TO RESIGN. The Program
Servicer Agent shall not resign from the duties and obligations hereby imposed
upon it except upon a determination that by reason of a change in Applicable Law
(i) the continued performance by the Program Servicer Agent of its duties
hereunder would cause it to be in violation of such Applicable Law, and (ii)
there is no reasonable action which the Program Servicer Agent could take to
comply with Applicable Law. Such a determination to that effect shall be
evidenced by a certificate of an executive officer of the Program Servicer Agent
accompanied by an opinion of outside counsel to the Program Servicer Agent
reasonably satisfactory to the Purchaser and the Program Administrator with
respect to the matters described in clause (i) of the preceding sentence.
Section 4.02. NO ASSIGNMENT. The Program Servicer Agent may not
assign this Agreement or any of its rights, powers, duties or obligations
hereunder.
Section 4.03. DELEGATION OF DUTIES. The Program Servicer Agent may
execute any of its duties under this Agreement by or through an agent with the
prior written consent of the Program Administrator, which consent shall not be
unreasonably withheld or delayed; PROVIDED, HOWEVER, that the Program Servicer
Agent's exercise of any such duties through any such agent shall not in any way
affect or limit its liabilities under this Agreement.
ARTICLE V
REMOVAL FOR CAUSE; SUCCESSOR PROGRAM SERVICER AGENT
Section 5.01. REMOVAL FOR CAUSE. The Purchaser or the Program
Administrator for Cause may remove Pioneer Funds Distributor, Inc. as Program
Servicer Agent under this Agreement and all of the rights and powers of the
Program Servicer Agent hereunder shall terminate on five (5) Business Days'
prior written notice to the Program Servicer Agent, it being understood that
such removal and termination shall not operate to terminate any of the Program
Servicer Agent's obligations under this Agreement other than its obligation to
perform the duties set forth in Articles II and III hereof after the date of
such termination. Upon such termination of the Program Servicer Agent's rights
and powers, all rights and powers of the Program Servicer Agent hereunder with
respect to the Portfolio Assets relating to each Fund will immediately vest in
the Program Administrator or such other Permitted Entity (as defined in Section
5.02) as the Program Administrator shall designate, and the Program
Administrator or such Permitted Entity
4
<PAGE> 100
shall be authorized and empowered to execute and deliver, on behalf of the
Program Servicer Agent, as attorney-in-fact or otherwise, all documents and
other instruments and to do all other things which the Purchaser or the Program
Administrator believes to be necessary or appropriate to effect such vesting,
subject, however, to the provisions of applicable law. The term "CAUSE" as used
herein shall mean: (i) the failure, in any material respect, of the Program
Servicer Agent to perform obligations under this Agreement, fully and in a
timely manner after being notified of such failure by the Program Administrator;
or (ii) the occurrence of an event of the type specified in clauses (e), (f),
(h), (i) or (k) of the definition of Event of Termination with respect to the
Program Servicer Agent.
Section 5.02. APPOINTMENT OF SUCCESSOR PROGRAM SERVICER AGENT. (a)
Within thirty (30) days after the time the Program Servicer Agent delivers a
notice of resignation pursuant to Section 4.01 or is removed pursuant to Section
5.01, the Program Administrator shall appoint a successor servicer (the
"SUCCESSOR"), which may be the Program Administrator, any Affiliate of the
Purchaser or the Program Administrator or such other Person reasonably
satisfactory to the Program Administrator (each a "PERMITTED ENTITY").
(b) Any such Successor shall have the following additional rights:
(i) to have its agents, employees and representatives enter upon the premises of
the Program Servicer Agent and the other Sponsor Entities during normal business
hours upon reasonable notice, and (ii) to perform at such premises all of the
functions necessary to be performed in accordance with the terms hereof for
fulfillment of its obligations hereunder including, but not limited to,
performance of all necessary accounting functions, bookkeeping functions,
notification and reporting functions and to deal in all other respects with the
Portfolio Assets relating to each Fund to the extent required to be performed by
the Program Servicer Agent hereunder. The Purchaser and the Program
Administrator (or their respective designees) shall be authorized and empowered
through their respective officers, directors, agents and employees to execute on
behalf of the Program Servicer Agent all checks, bills, drafts, deposits and
other bank documents or other instruments as may be necessary or appropriate to
effect the foregoing.
Section 5.03. NO EFFECT ON OTHER PARTIES. Upon any termination of
the rights and powers of the Program Servicer Agent pursuant to Section 4.01 or
Section 5.01 hereof, or upon any appointment of a Successor, all the rights and
powers of the Purchaser and the Program Administrator hereunder will remain
unaffected by the termination or appointment and will remain in full force and
effect.
Section 5.04. RIGHTS CUMULATIVE. The rights and remedies conferred
upon or reserved to the Purchaser and the Program Administrator in this
Agreement, the Master Agreement, and the other Program Documents are cumulative,
and none is intended to be exclusive of another. No delay or omission in
insisting upon the strict observance or performance of any provision hereof or
of the Master Agreement, or any other Program Document, or in exercising any
right or remedy hereunder or thereunder, will be construed as a waiver or
relinquishment of that provision or will impair such right or remedy. Every
right and remedy may be exercised from time to time and as often as deemed
expedient.
5
<PAGE> 101
ARTICLE VI
TERMINATION; REMOVAL AND RESIGNATION;
TRANSFER OF SERVICING FUNCTION
Section 6.01. REMOVAL AND RESIGNATION. If the rights and obligations
of the Program Servicer Agent are terminated pursuant to Section 4.01 or Section
5.01, the Program Servicer Agent shall promptly remit to the Program Collection
Account all other moneys with respect to the Purchased Portfolio Assets relating
to each Fund held by the Program Servicer Agent, or for the account of the
Purchaser, if any.
Section 6.02. TRANSFER OF SERVICING FUNCTION. If the rights and
obligations of the Program Servicer Agent are terminated in accordance with
Section 4.01 or Section 5.01 hereof, the Program Servicer Agent shall deliver to
the Program Administrator (or such Person designated by the Program
Administrator) all information, records and documents in the Program Servicer
Agent's possession which are necessary or appropriate for the servicing of the
Portfolio Assets relating to each Fund. The Program Servicer Agent shall execute
all documents reasonably requested by the Purchaser and the Program
Administrator to effectively transfer the servicing obligations to the
Successor.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. MODIFICATIONS IN WRITING. This Agreement and any term
or provision hereof may only be amended, modified or waived by a written
instrument executed by the parties hereto and by any additional Persons whose
execution is required pursuant to Section 8.01 of the Master Agreement.
Section 7.02. NOTICES. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be given or made in accordance with Section 8.03 of the Master
Agreement.
Section 7.03. BINDING EFFECT; ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of, the parties hereto and their
respective successors and assigns. No party shall assign any of its rights or
obligations hereunder without the prior written consent of the other parties
hereto and of any additional Persons whose consent is required pursuant to
Section 8.07 of the Master Agreement.
Section 7.04. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT
REGARD TO ITS CONFLICTS OF LAWS PROVISIONS THEREOF.
6
<PAGE> 102
Section 7.05. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable, in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 7.06. SURVIVAL. The obligations of the Program Servicer
Agent in respect of the breach of any provision or covenant set forth herein
shall continue to be the obligation of the Person who was the Program Servicer
Agent at the time of such breach regardless of any subsequent assignment or
transfer of such Program Servicer Agent's obligations hereunder or to another
Person and regardless of the Purchase Termination Date.
7
<PAGE> 103
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
PIONEER FUNDS DISTRIBUTOR, INC.,
as Program Servicer Agent
By: /s/ Robert L. Butler
----------------------------
Name: Robert L. Butler
Title: President
8
<PAGE> 104
PLT FINANCE, L.P.,
as Purchaser
By: PLT Finance, Inc.,
General Partner
By: /s/ Robert T. Fleisher
----------------------------
Name: Robert T. Fleisher
Title: Vice President
PUTNAM, LOVELL, DE GUARDIOLA &
THORNTON INC.,
as Program Administrator
By: /s/ Michael R. Llodra
----------------------------
Name: Michael R. Llodra
Title: Vice President
9
<PAGE> 105
Exhibit C To
Pioneer Program
Master Agreement
================================================================================
PIONEER PROGRAM FUNDING AND
COLLECTION AGENCY AGREEMENT
Dated as of September 30, 1998
among
BANKERS TRUST COMPANY,
as Collection Agent,
PLT FINANCE, L.P.,
as Purchaser,
PUTNAM, LOVELL, DE GUARDIOLA & THORNTON INC.,
as Program Administrator
and
PIONEER FUNDS DISTRIBUTOR, INC.,
as Distributor
================================================================================
<PAGE> 106
TABLE OF CONTENTS
Page
----
ARTICLE I RULES OF CONSTRUCTION; DEFINED TERMS
1.01. Rules of Construction................................ 1
1.02. Defined Terms........................................ 1
ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS
2.01. Representations and Warranties....................... 1
2.02. Covenants............................................ 2
ARTICLE III PURCHASER'S FUNDING ACCOUNT
3.01. Establishment and Maintenance........................ 2
3.02. Deposits............................................. 2
3.03. Application of Funds in the Purchaser's
Funding Account.................................... 2
3.04. Investment of Funds Deposited in Purchaser's
Funding Account.................................... 3
ARTICLE IV PROGRAM COLLECTION ACCOUNT
4.01. Establishment and Maintenance........................ 4
4.02. Required Deposits.................................... 4
4.03. Application of Funds in the Program
Collection Account................................. 5
4.04. Investment of Funds Deposited in Program
Collection Account................................. 7
4.05. Program Collection Account CDSC Sub-Accounts......... 9
ARTICLE V COLLECTION AGENT
5.01. Appointment.......................................... 9
5.02. Scope of Duties...................................... 10
5.03. Delegation of Duties................................. 10
5.04. Reliance by Collection Agent......................... 10
5.05. Collection Agent in its Individual Capacity.......... 10
5.06. Limitation on Liability, Etc......................... 10
i
<PAGE> 107
ARTICLE VI SUCCESSOR COLLECTION AGENT; QUALIFICATIONS OF
COLLECTION AGENT
6.01. Successor Collection Agent........................... 11
6.02. Qualifications of Collection Agent................... 12
ARTICLE VII FEES AND EXPENSES
7.01. Payment of Expenses and Taxes........................ 12
7.02. Fees................................................. 13
ARTICLE VIII MISCELLANEOUS
8.01. Amendment and Waivers................................ 13
8.02. Notices.............................................. 13
8.03. Severability......................................... 13
8.04. No Waiver; Cumulative Remedies....................... 14
8.05. Termination.......................................... 14
8.06. Successors and Assigns............................... 14
8.07. Governing Law........................................ 14
8.08. Security Interests................................... 14
8.09. Counterparts......................................... 15
ii
<PAGE> 108
PIONEER PROGRAM FUNDING AND
COLLECTION AGENCY AGREEMENT
PIONEER PROGRAM FUNDING AND COLLECTION AGENCY AGREEMENT, dated as of
September 30, 1998, among BANKERS TRUST COMPANY, as collection agent (in such
capacity, the "COLLECTION AGENT"), PLT FINANCE, L.P. (the "Purchaser"), PUTNAM,
LOVELL, DE GUARDIOLA & THORNTON INC., as program administrator (the "PROGRAM
ADMINISTRATOR") and PIONEER FUNDS DISTRIBUTOR, INC. (the "DISTRIBUTOR").
W I T N E S S E T H:
WHEREAS, the Purchaser, the Distributor, the Program Administrator
and the Collection Agent are parties to that certain Pioneer Program Master
Agreement dated as of the date hereof with the "Advisor" and the "Parent" as
defined therein (the "MASTER AGREEMENT") pursuant to which the Purchaser has
agreed, on the terms and conditions set forth therein, to purchase from the
Distributor certain "Purchased Portfolio Assets" as defined therein; and
WHEREAS, it is a condition precedent in the Master Agreement that
the parties hereto enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
conditions herein contained and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each of the parties
hereto agree as follows:
ARTICLE I
RULES OF CONSTRUCTION; DEFINED TERMS
Section 1.01. RULES OF CONSTRUCTION. The rules of construction set
forth in Schedule X to the Master Agreement shall be applied to this Agreement.
Section 1.02. DEFINED TERMS. Capitalized terms not otherwise defined
herein shall have the meanings assigned to such terms in Schedule X to the
Master Agreement.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01. REPRESENTATIONS AND WARRANTIES. Each of the
parties to this Agreement represents and warrants to the other parties to
this Agreement as follows:
<PAGE> 109
(a) it is duly organized and existing under the laws of the
jurisdiction of its organization with full power and authority to execute and
deliver this Agreement and to perform all of the duties and obligations to be
performed by it under this Agreement; and
(b) this Agreement has been duly authorized, executed and delivered
by it, and constitutes its valid, legal and binding obligation enforceable
against it in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency or other similar laws of general application relating
to or affecting the enforcement of creditors' rights in general or by general
principles of equity whether considered in a proceeding at law or equity.
Section 2.02. COVENANTS. Each of the Purchaser, the Program
Administrator and the Distributor covenants and agrees that all authorizations
in this Agreement for the Collection Agent to endorse checks, instruments and
securities and to execute, deliver and file other instruments with respect to
the Program Collection Account are powers coupled with an interest and are
irrevocable.
ARTICLE III
PURCHASER'S FUNDING ACCOUNT
Section 3.01. ESTABLISHMENT AND MAINTENANCE. Concurrently with the
execution and delivery of this Agreement, the Purchaser shall establish an
account entitled "PLT Finance, L.P. Pioneer Program Funding Account" for its
account at the Collection Agent, at Four Albany Street, New York, New York
10006, ABA No.: 021001033, Account No. 01419647 for further credit to 26446,
Ref. "Pioneer Purchaser's Funding Account" (the "PURCHASER'S FUNDING ACCOUNT"),
the operation of which shall be governed by this Article III. The Purchaser
hereby appoints the Collection Agent as its agent to hold the Purchaser's
Funding Account and all moneys on deposit therein, with the sole and exclusive
right to withdraw or order a transfer of the Purchaser Deposited Funds from the
Purchaser's Funding Account with full power of substitution, for the purpose of
making any such withdrawal or ordering any such transfer of Purchaser Deposited
Funds from the Purchaser's Funding Account, which appointment is coupled with an
interest and is irrevocable, all in accordance with the terms of this Agreement;
and the Distributor hereby consents to such appointment. Neither the Purchaser,
the Program Administrator nor the Distributor shall have any right of withdrawal
from the Purchaser's Funding Account, but may require application of amounts on
deposit therein be made strictly in accordance with the terms of this Article
III.
Section 3.02. DEPOSITS. The Purchaser may, from time to time, make
wire transfers to the Purchaser's Funding Account. The Collection Agent shall
have no responsibility for calculating the Purchase Limit of the Purchaser in
effect from time to time.
Section 3.03. APPLICATION OF FUNDS IN THE PURCHASER'S FUNDING
ACCOUNT. The Collection Agent shall disburse to the Distributor's Remittance
Account out of the Purchaser Deposited Funds on any Purchase Date funds equal to
the aggregate Purchase Price set forth in
2
<PAGE> 110
the Purchase Notice executed by an Authorized Representative of the Distributor
received by it in respect of such Purchase Date.
Section 3.04. INVESTMENT OF FUNDS DEPOSITED IN PURCHASER'S FUNDING
ACCOUNT. (a) To the extent that any Purchaser's Deposited Funds are not required
to be promptly distributed from the Purchaser's Funding Account and such funds
remain in such Purchaser's Funding Account unused, the Collection Agent shall
invest and reinvest at the written direction of the Program Administrator, in
its own name or in the name of its nominee, such Purchaser's Deposited Funds in
investments, having maturities which shall not extend beyond the next Business
Day or such longer period as the Program Administrator shall designate in
writing (each such investment, a "CASH EQUIVALENT") and which constitute:
(i) marketable direct obligations issued or unconditionally
and fully guaranteed by the United States of America or issued by
any agency thereof;
(ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such
state or any public instrumentality thereof and having as at any
date of determination the highest rating obtainable from Standard &
Poor's;
(iii) commercial paper issued by any corporation (other than
an Affiliate of the Distributor) organized and existing under the
United States of America and having as at any date of determination
the highest rating obtainable from Standard & Poor's;
(iv) certificates of deposit issued by commercial banking
institutions that are members of the Federal Reserve System, each
having as at any date of determination combined capital and surplus
of not less than $500,000,000, and the commercial paper of other
short-term unsecured debt obligations of which, as at any date of
determination, have the highest rating obtainable from Standard &
Poor's ("PERMITTED BANKS"); and
(v) investments in money market funds having a rating of
"AAAm" or "AAAm-g" from Standard & Poor's (including funds for which
the Parent or the Collection Agent or any of their respective
Affiliates is investment manager or advisor).
In the absence of specific written instructions by an Authorized Representative
of the Program Administrator, the Collection Agent shall, in accordance with
this Section 3.04, invest the Purchaser's Deposited Funds in such Cash
Equivalents described in clause (v) above. All such Cash Equivalents and the
interest and income received thereon and the net proceeds realized on the sale
or redemption thereof shall be deemed to be to the credit of the Program
Collection Account.
(b) The Collection Agent may, without requirement of
instructions from the Program Administrator, take such actions as are reasonably
necessary to realize the proceeds
3
<PAGE> 111
of any such Cash Equivalent that are held to stated maturity thereof. The
Collection Agent may, at the written direction of the Program Administrator,
liquidate Cash Equivalents from time to time to the extent necessary to make
payments pursuant to Section 3.03 hereof. None of the Collection Agent, the
Purchaser, the Distributor or the Program Administrator shall have recourse to
any other party hereto for any loss resulting from the investment performance of
any investment or reinvestment of moneys made in accordance with the provisions
of this Section or from the sale or liquidation of such Cash Equivalents.
ARTICLE IV
PROGRAM COLLECTION ACCOUNT
Section 4.01. ESTABLISHMENT AND MAINTENANCE. Concurrently with the
execution and delivery of this Agreement, the Collection Agent shall establish
an account entitled "Pioneer Funding Program Collection Account," at Four Albany
Street, New York, New York 10006, ABA No.: 021001033, Account No. 00380525, Ref.
"PLT Finance - Pioneer Funding Collection Account" for further credit to Account
No. 26447 (the "PROGRAM COLLECTION ACCOUNT"), the operation of which shall be
governed by this Article IV. The Purchaser hereby appoints the Collection Agent
as its agent to hold the Program Collection Account and all moneys on deposit
therein, with the sole and exclusive right to withdraw or order a transfer of
Deposited Collection Funds from the Program Collection Account with full power
of substitution, for the purpose of making any such withdrawal or ordering any
such transfer of Deposited Collection Funds from the Program Collection Account,
which appointment is coupled with an interest and is irrevocable, all in
accordance with the terms of this Agreement. The Distributor hereby consents to
such appointment. Neither the Purchaser, the Program Administrator nor the
Distributor shall have any right of withdrawal from the Program Collection
Account, but may require application of amounts on deposit therein be made
strictly in accordance with the terms of this Article IV.
Section 4.02. REQUIRED DEPOSITS.
(a) Pursuant to the Irrevocable Payment Instructions given by the
Distributor to the Transfer Agent, Custodian and each Company in respect of each
Fund, the Transfer Agent, Custodian, each Company and in certain cases Selling
Agents shall in respect of each Fund remit all Program Collections and Related
Collections payable by each Company and its shareholders in respect of each Fund
directly to the Program Collection Account in accordance with the terms of the
Irrevocable Payment Instruction.
(b) If any check, instrument or security shall not be endorsed, the
Program Administrator, the Purchaser and the Distributor hereby irrevocably
authorize and empower the Collection Agent to endorse the same as
attorney-in-fact.
4
<PAGE> 112
Section 4.03. APPLICATION OF FUNDS IN THE PROGRAM COLLECTION
ACCOUNT.
(a) On each Monthly Settlement Date until this Agreement
terminates in accordance with Section 8.05, the Collection Agent shall allocate
the following amounts from the Program Collection Account and distribute such
amounts in the following priority:
(i) an amount equal to the accrued and unpaid Collection
Agent Fee then due and payable shall be distributed to the Collection Agent;
(ii) an amount equal to any other accrued Program Costs shall
be distributed to the Program Administrator for payment to the appropriate party
or at its direction;
(iii) an amount equal to the result of:
(A) the sum of the Purchaser's Asset Based Sales Charge
Portion, PLUS, the Purchaser's CDSC Portion, PLUS the
Purchaser's Investment Earnings, LESS
(B) the sum of the Purchaser's allocable portion of the
amount distributed pursuant to clauses (i) and (ii) above, as
determined in accordance with Section 4.03(b), shall be
transferred to the Purchaser's Remittance Account; and
(iv) an amount equal to the result of:
(A) the sum of the Distributor's Asset Based Sales
Charge Portion, PLUS, the Distributor's CDSC Portion, plus the
Distributor's Investment Earnings, less
(B) the Distributor's allocable portion of the amount
distributed pursuant to clauses (i) and (ii) above, as
determined in accordance with Section 4.03(b),
shall be transferred to the Distributor's Remittance Account.
(b) (i) The amount of funds applied by the Collection Agent in
accordance with Section 4.03(a)(i) on any Monthly Settlement Date shall be
allocated among the Purchaser and the Distributor in the proportion that Program
Collections and Related Collections deposited in the Program Collection Account
since the immediately preceding Monthly Settlement Date are allocated among each
thereof on the Monthly Settlement Date in question; and
(ii) The amount of funds applied by the Collection Agent in
accordance with Section 4.03(a) (ii) on any Monthly Settlement Date shall be
allocated among the Purchaser and the Distributor in the proportion that Program
Collections and Related Collections deposited in the Program Collection Account
since the immediately preceding Monthly Settlement Date are allocated to each on
the Monthly Settlement Date in question; PROVIDED, HOWEVER, that special
5
<PAGE> 113
allocations of Program Costs will be made by the Program Administrator if such
costs are related solely to Portfolio Assets owned by the Purchaser or the
Distributor.
(c) (i) As used in this Agreement the term "PURCHASER'S INVESTMENT
EARNINGS" shall mean on any Monthly Settlement Date, an amount equal to the
product of (A) the result of (x) the Investment Earnings, if any, minus (y) the
Investment Losses, if any, and (B) a fraction, expressed as a percentage, the
numerator of which is the Purchaser's Portion (determined without regard to
clause (iii) of the definition thereof) of the Program Collections and Related
Collections which were deposited in the Program Collection Account since the
immediately preceding Monthly Settlement Date and the denominator of which is
the total amount of Program Collections and Related Collections which were
deposited in the Program Collection Account since the immediately preceding
Monthly Settlement Date.
(ii) As used in this Agreement the term "DISTRIBUTOR'S INVESTMENT
EARNINGS" shall mean on any Monthly Settlement Date, an amount equal to the
product of (a) the result of (x) the Investment Earnings, if any, minus (y) the
Investment Losses, if any, and (b) a fraction, expressed as a percentage, the
numerator of which is the Distributor's Portion (determined without regard to
clause (iii) of the definition thereof) of Program Collections and Related
Collections which were deposited in the Program Collection Account since the
immediately preceding Monthly Settlement Date and the denominator of which is
the total amount of Program Collections and Related Collections which were
deposited in the Program Collection Account since the immediately preceding
Monthly Settlement Date.
(d) For purposes of determining the amounts to be distributed
pursuant to Section 4.03(a), the Purchaser hereby authorizes the Collection
Agent to conclusively rely upon the written statements of the Authorized
Representative of the Program Administrator setting forth the calculations of
such amounts, and the Distributor hereby consents thereto (which notice or
statements shall set forth in reasonable detail the computation of such
amounts). Unless such written statement is received by the Collection Agent on
or prior to 12:00 noon (New York City time) on the Business Day funds are to be
distributed under Section 4.03(a), the Collection Agent shall use its reasonable
efforts to, but shall not be obligated to, distribute such amounts on such day;
PROVIDED, HOWEVER, that if such certificate or statement is received by the
Collection Agent after 12:00 noon (New York City time) on any day on or after
the date that such funds were to be distributed under Section 4.03(a), it shall
in any event distribute such funds not later than the next succeeding Business
Day after receipt of such certificate or statement; and PROVIDED, FURTHER, that
if such certificate or statement is received by the Collection Agent prior to
the close of business (New York City time) on the day prior to the day on which
funds were to be distributed under Section 4.03(a) (each such day on which funds
are to be distributed, the "DISTRIBUTION DATE"), it shall in any event
distribute such funds not later than 12:00 noon (New York City time) on the
Distribution Date.
Notwithstanding the foregoing, if an Authorized Representative of
the Distributor or the Purchaser shall have certified in writing that the
computation of any amount in respect of the Distributor's Portion or the
Purchaser's Portion under Section 4.03(a) is not in conformity with the
mechanics for calculating any such amount set forth in this Agreement or any
other Program Document (which certification shall set forth in reasonable detail
the Distributor's or the
6
<PAGE> 114
Purchaser's, as the case may be, calculation of such amount, the nature of the
alleged error made and the amount of such discrepancy), the Collection Agent
shall not distribute the amount of the discrepancy stipulated in such
certificate until the Distributor and the Purchaser shall have agreed upon how
such amount should be properly distributed or a court shall have made a
determination concerning the amounts properly distributable in respect thereto.
Each of the Distributor and the Purchaser agrees that it shall not
send the certificate specified in the immediately preceding sentence unless it
reasonably believes that the computation of the Distributor's Portion or the
Purchaser's Portion, as the case may be, was not in conformity with the
provisions of this Agreement and the Master Agreement. The Collection Agent
shall not be liable for any application of the moneys and other cash proceeds
pursuant to Section 4.03(a) made in accordance with any certificate or written
direction delivered pursuant to this Section 4.03(d) or otherwise made in
accordance with the second preceding sentence; PROVIDED, HOWEVER, that no
application of the moneys and other cash proceeds by the Collection Agent in
accordance with any certificate or other written direction delivered or made
pursuant to this Section 4.03(d) shall be deemed to restrict or limit the right
of any party to contest with the purported obligee the amount set forth in such
certificate or other written direction. In no event shall the Collection Agent
be obligated to make any application or distribution of funds in the Program
Collection Account in the absence of such certificate or written direction. For
purposes of this Agreement, the term "AUTHORIZED REPRESENTATIVE" shall mean any
individual at the time designated to act on behalf of the Distributor, the
Purchaser or the Program Administrator, as the case may be, such designation to
be evidenced by a written certificate (an "AUTHORIZED REPRESENTATIVE
CERTIFICATE") (i) furnished on the date hereof and from time to time hereafter
by the Distributor, the Purchaser or the Program Administrator, as the case may
be, to the Collection Agent containing the name, title and specimen signature of
each such individual, and (ii) executed on behalf of the Distributor, the
Purchaser or the Program Administrator, as the case may be, by the President,
any Vice President, any Secretary or any Assistant Secretary of the Distributor,
the Purchaser or the Program Administrator, as the case may be. Until the
Collection Agent has received a subsequent Authorized Representative
Certificate, the Collection Agent shall be entitled to rely conclusively on the
last such Authorized Representative Certificate delivered to it hereunder for
the purpose of determining the Authorized Representatives of the Distributor,
the Purchaser or the Program Administrator, as the case may be.
(e) The Collection Agent shall (subject to Section 4.03(d)) upon its
receipt of an Allocation Notice (with a copy to the other parties hereto) remit
Deposited Collection Funds to the Purchaser's Remittance Account and the Program
Servicer Agent Remittance Account as contemplated by Section 4.03(a) on a more
frequent basis as specified in such Allocation Notice.
Section 4.04. INVESTMENT OF FUNDS DEPOSITED IN PROGRAM COLLECTION
ACCOUNT. (a) To the extent that any Deposited Collection Funds are not required
to be promptly distributed from the Program Collection Account and such funds
remain in such Program Collection Account unused after being set aside for the
purposes specified in Section 4.03 above, the Collection Agent shall invest and
reinvest at the written direction of the Program Administrator, in its own name
or in the name of its nominee, such Deposited Collection Funds in investments,
7
<PAGE> 115
having maturities which shall not extend beyond the next following Monthly
Settlement Date (each such investment, a "CASH EQUIVALENT") and which
constitute:
(i) marketable direct obligations issued or unconditionally and
fully guaranteed by the United States of America or issued by any agency
thereof;
(ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any
public instrumentality thereof and having as at any date of determination
the highest rating obtainable from Standard & Poor's;
(iii) commercial paper issued by any corporation (other than an
Affiliate of the Seller) organized and existing under the United States of
America and having as at any date of determination the highest rating
obtainable from Standard & Poor's;
(iv) certificates of deposit issued by commercial banking
institutions that are members of the Federal Reserve System, each having
as at any date of determination combined capital and surplus of not less
than $500,000,000, and the commercial paper of other short-term unsecured
debt obligations of which, as at any date of determination, have the
highest rating obtainable from Standard & Poor's ("PERMITTED BANKS"); and
(v) investments in money market funds having a rating of "AAAm" or
"AAAm-g" from Standard & Poor's (including funds for which the Parent or
the Collection Agent or any of their respective Affiliates is investment
manager or advisor).
In the absence of specific written instructions by an Authorized Representative
of the Program Administrator, the Collection Agent shall, in accordance with
this Section 4.04, invest the Deposited Collection Funds in such Cash
Equivalents described in clause (v) above. All such Cash Equivalents and the
interest and income received thereon and the net proceeds realized on the sale
or redemption thereof shall be deemed to be to the credit of the Program
Collection Account.
(b) The Collection Agent may, without requirement of instructions
from the Program Administrator, take such actions as are reasonably necessary to
realize the proceeds of any such Cash Equivalent that are held to the stated
maturity thereof. The Collection Agent may, at the written direction of the
Program Administrator, liquidate Cash Equivalents from time to time to the
extent necessary to make payments pursuant to Section 4.03 hereof. None of the
Collection Agent, the Purchaser, the Distributor or the Program Administrator
shall have recourse to any other party hereto for any loss resulting from the
investment performance of any investment or reinvestment of moneys made in
accordance with the provisions of this Section or from the sale or liquidation
of such Cash Equivalents.
8
<PAGE> 116
Section 4.05. PROGRAM COLLECTION ACCOUNT CDSC SUB-ACCOUNTS.
(a) The Collection Agent shall establish and maintain for each of
the Purchaser, and the Distributor a separate account as a sub-account of the
Program Collection Account referred to as: (i) the "PURCHASER CDSC SUB-ACCOUNT,"
in the case of the Purchaser; and (ii) the "DISTRIBUTOR CDSC SUB-ACCOUNT," in
the case of the Distributor; such accounts are collectively referred to as the
"CDSC SUB-ACCOUNTS." References in this Agreement to the Program Collection
Account shall be deemed to refer to the Program Collection Account and all CDSC
Sub-accounts.
(b) Upon receipt of each deposit of Contingent Deferred Sales
Charges into the Program Collection Account, the Collection Agent shall deposit
a portion of such deposit in the CDSC Sub-account for each of the Purchaser and
the Distributor equal to a percentage of the total amount of such deposit equal
to the Purchaser's CDSC Portion or Distributor's CDSC Portion, as the case may
be, for the Monthly Settlement Date immediately preceding such deposit, all in
accordance with the written direction of an Authorized Representative of the
Program Administrator.
(c) If as of any Monthly Settlement Date the Program Administrator
determines that the amount on deposit in any CDSC Sub-account includes a portion
of the CDSC Portion for such Monthly Settlement Date of a party other than the
party for whom such CDSC Sub-account was established, the Collection Agent
shall, at the written direction of the Program Administrator, transfer such
amount to the proper CDSC Sub-account.
(d) On each Monthly Settlement Date, the amounts on deposit in the
CDSC Sub-accounts which are required to be distributed to the Purchaser or the
Distributor shall be paid to such party directly from the CDSC Sub-account
established for such party in accordance with the provisions of Section 4.03.
ARTICLE V
COLLECTION AGENT
Section 5.01. APPOINTMENT. Each of the Purchaser and the Program
Administrator hereby appoints Bankers Trust Company, as Collection Agent under
this Agreement with full power and authority to apply the Deposited Collection
Funds in accordance with the terms and conditions of this Agreement and to
otherwise perform the duties of the Collection Agent, hereunder and the
Distributor hereby consents and agree to such appointment. Bankers Trust Company
hereby accepts the appointment as Collection Agent hereunder and agrees to
receive and safe keep all funds transferred or delivered to the Collection Agent
for deposit in the Program Collection Account and apply and distribute the
Deposited Collection Funds solely in accordance with the terms of this Agreement
and to otherwise perform its duties as hereinafter provided. Each of the parties
acknowledges that pursuant to that certain Pledge and Collateral Agency
Agreement, dated as of July 29, 1997, among the Purchaser, the Program
Administrator, certain Residual Interest Holders parties thereto, certain
Qualified Enhancement Provider Security Holders parties thereto, Bankers Trust
Company, as Collateral Agent and
9
<PAGE> 117
Master Collection Agent (the "COLLATERAL AGENT"), certain Secured Parties
parties thereto and the Placement Trust parties thereto (the "PURCHASER
WAREHOUSE PLEDGE AGREEMENT"), the Collateral Agent has appointed the Collection
Agent as the Collateral Agent's agent for purposes of perfecting the Collateral
Agent's security interest created by the Purchaser Warehouse Pledge Agreement in
the interest of the Purchaser in the Program Collection Account and in the
Deposited Funds deposited therein. Each of the Parties acknowledges that
pursuant to those certain indentures to be entered into between certain
Placement Trusts, which have become a party to the Purchaser Warehouse Pledge
Agreement, and certain indenture trustees, such indenture trustees have
appointed the Collection Agent as the indenture trustee's agent for purposes of
perfecting the indenture trustee's security interest created by the relevant
indenture in the interest of the Purchaser in the Program Collection Account and
in the Deposited Funds deposited therein. The Collection Agent accepts such
appointments, and the other parties hereto consent to such appointments.
Section 5.02. SCOPE OF DUTIES. The Collection Agent undertakes to
perform only those duties in such capacity as are expressly required by this
Agreement.
Section 5.03. DELEGATION OF DUTIES. Subject to Article VI hereof,
the Collection Agent may not assign its rights or obligations under this
Agreement. The Collection Agent may, however, execute any of its duties under
this Agreement by or through its officers, directors, employees, attorneys,
custodians, nominees or agents; PROVIDED, HOWEVER, that no such delegation of
duties shall limit or otherwise affect the liability of the Collection Agent for
its performance of its duties hereunder. The Collection Agent shall be entitled
to (and shall be protected in relying upon) advice of counsel concerning all
matters pertaining to its duties under this Agreement.
Section 5.04. RELIANCE BY COLLECTION AGENT. The Collection Agent and
its officers, directors, employees, attorneys, nominees and agents shall be
entitled to conclusively rely and shall be fully protected in relying on any
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telex or teletype message, statement, order, or other document
reasonably believed by it or them to be genuine and correct and to have been
signed or made by the proper Person and, with respect to legal matters, upon
opinions of counsel selected by the Collection Agent.
Section 5.05. COLLECTION AGENT IN ITS INDIVIDUAL CAPACITY. The
Collection Agent may accept deposits from, act as trustee under indentures of,
and generally engage in any kind of business with, the Purchaser, the Program
Administrator, the Distributor, any other party to any Program Document, any of
their respective Affiliates and any other Person who may do business with or own
securities of any of the foregoing, all as if the Collection Agent were not the
Collection Agent hereunder and without any duty to account therefor to the
Purchaser, the Program Administrator or the Distributor.
Section 5.06. LIMITATION ON LIABILITY, ETC. Neither the Collection
Agent, nor any of its directors, officers, employees, custodians, nominees or
agents, shall be liable for any action taken or omitted to be taken by it or
them hereunder or in connection herewith, except for its or their gross
negligence or willful misconduct; nor shall the Collection Agent be responsible
for
10
<PAGE> 118
the validity, effectiveness, value, sufficiency or enforceability against the
Purchaser, the Program Administrator or the Distributor of this Agreement or any
other Program Document furnished pursuant hereto or in connection herewith.
Without limiting the generality of the foregoing, the Collection Agent: (i)
except as expressly provided in this Agreement or any other Program Document,
makes no warranty or representation, and shall not be responsible to the
Purchaser, the Program Administrator or the Distributor for any statements,
warranties or representations made in or in connection with this Agreement or
any such Program Document by any such Person; and (ii) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement or any other Program Document
on the part of the Purchaser, the Program Administrator or the Distributor. No
implied covenant or obligation shall be read into this Agreement against the
Collection Agent. The Collection Agent shall not be compelled to do any act not
expressly set forth in this Agreement or to take any action towards the
enforcement of the powers hereby created or to prosecute or defend any suit in
respect hereof unless indemnified to its reasonable satisfaction against loss,
cost, liability and expense. The Collection Agent shall not have or be deemed to
have any trust relationship with the Purchaser, the Program Administrator or the
Distributor as a result of this Agreement or any of its actions in connection
herewith.
ARTICLE VI
SUCCESSOR COLLECTION AGENT;
QUALIFICATIONS OF COLLECTION AGENT
Section 6.01. SUCCESSOR COLLECTION AGENT. The Collection Agent
acting hereunder may resign at any time upon thirty (30) days prior written
notice to the Purchaser, the Program Administrator and the Distributor, and may
be removed at any time with or without cause by an instrument in writing duly
executed by the Purchaser and the Program Administrator. Subject to the
provisions of Section 6.02, the Program Administrator shall have the right to
appoint a successor to the Collection Agent which shall be such other bank or
financial institution selected by the Program Administrator and reasonably
satisfactory to the Purchaser and the Distributor upon any such resignation or
removal, by an instrument of substitution complying with the requirements of
Applicable Law, or, in the absence of any such requirements, without other
formality than appointment and designation in writing. Upon the making and
acceptance of such appointment, the execution and delivery by such successor
Collection Agent of a ratifying instrument pursuant to which such successor
Collection Agent agrees to assume the duties and obligations imposed on the
Collection Agent by the terms of this Agreement, and the delivery to such
successor Collection Agent of the Deposited Collection Funds and documents and
instruments then held by the retiring Collection Agent, such successor
Collection Agent shall thereupon succeed to and become vested with all the
estate, rights, powers, remedies, privileges, immunities, indemnities, duties
and obligations hereby granted to or conferred or imposed upon the Collection
Agent named herein, and one such appointment and designation shall not exhaust
the right to appoint and designate further successor Collection Agents
hereunder. No Collection Agent shall be discharged from its duties or
obligations hereunder the Collection Deposited Funds and documents and
instruments then held by such Collection Agent shall have been transferred or
delivered to the successor Collection Agent for
11
<PAGE> 119
deposit in the new Program Collection Account, as applicable, and until such
retiring Collection Agent shall have executed and delivered to the successor
Collection Agent appropriate instruments substituting such successor Collection
Agent as attorney-in-fact of the Purchaser, the Program Administrator and the
Distributor for purposes of this Agreement as contemplated by Section 2.02. If
no successor Collection Agent shall be appointed, as aforesaid, or, if
appointed, shall not have accepted its appointment, within thirty (30) days
after resignation or removal of the retiring Collection Agent then, subject to
the provisions of this Section 6.01, the Collection Agent may appoint a
successor Collection Agent reasonably satisfactory to the Purchaser, the Program
Administrator and the Distributor. Each such successor Collection Agent shall
provide the Purchaser, the Program Administrator and the Distributor with its
address, telephone and facsimile numbers, to be used for purposes of Section
8.02 hereof, in a notice complying with the terms of said Section.
Notwithstanding the resignation or removal of any Collection Agent hereunder,
the provisions of this Agreement shall continue to inure to the benefit of such
Collection Agent in respect of any action taken or omitted to be taken by such
Collection Agent in its capacity as such while it was Collection Agent under
this Agreement. No Collection Agent shall be liable by reason of any act or
omission of any successor Collection Agent.
Section 6.02. QUALIFICATIONS OF COLLECTION AGENT. Any Collection
Agent at any time acting hereunder must at all times be an "Eligible
Institution," as hereinafter defined. For purposes of this Section 6.02, the
term "Eligible Institution" shall mean any branch of a depository institution or
trust company organized under the laws of the United States, any state thereof
or the District of Columbia (or any branch of a foreign bank), which (i) has
either (A) a long-term unsecured debt rating of "AA" (or the equivalent) or
better by Standard & Poor's or (B) a certificate of deposit rating of "A-1" by
Standard & Poor's, or is otherwise acceptable to Standard & Poor's and (ii) has
total capital and surplus of at least $100,000,000.
ARTICLE VII
FEES AND EXPENSES
Section 7.01. PAYMENT OF EXPENSES AND TAXES. The Distributor shall
(a) to the extent not otherwise paid pursuant to this Agreement or the Master
Agreement, pay or reimburse the Collection Agent for (i) all the reasonable
out-of-pocket costs and expenses (including the fees and disbursements of
counsel) incurred by the Collection Agent in connection with the preparation and
execution of this Agreement; (ii) all reasonable out-of-pocket costs and
expenses (other than fees and disbursements of counsel) incurred by the
Collection Agent in connection with any amendment, supplement or modification to
this Agreement and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby; and (iii) the reasonable fees and disbursements of counsel to the
Collection Agent in connection with clause (ii); (b) to the extent not otherwise
paid pursuant to this Agreement or the Master Agreement, pay or reimburse the
Collection Agent for all its reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, and any such other documents, including, without limitation,
reasonable fees and disbursements of counsel to the Collection Agent, (c) to the
extent not otherwise paid pursuant to this Agreement or the Master Agreement,
pay, indemnify, and hold
12
<PAGE> 120
the Collection Agent, and its respective directors, officers, employees,
custodians, nominees, agents and representatives, harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp and other taxes, if any, which may be
payable or determined to be payable by the Collection Agent in connection with
the execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, and any such other documents,
and (d) pay, indemnify, and hold the Collection Agent, and its directors,
officers, employees, custodians, nominees, agents and representatives, harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursement of any
kind or nature whatsoever with respect to the enforcement, performance and
administration of this Agreement, the other Program Documents and any such other
documents contemplated hereby or thereby (all the foregoing, collectively, the
"INDEMNIFIED LIABILITIES"); PROVIDED, HOWEVER, that neither the Distributor, the
Purchaser or the Program Administrator shall have any obligation hereunder with
respect to the Collection Agent's ordinary administrative costs, or any
Indemnified Liabilities arising from (i) the breach by the Collection Agent of
any representation, warranty or covenant expressly set forth in this Agreement
or (ii) the gross negligence or willful misconduct of the Collection Agent.
Section 7.02. FEES. The Collection Agent shall be paid a fee at the
rate of $6,000 per annum payable in equal installments in arrears monthly on
each Monthly Settlement Date during the term of this Agreement from Deposited
Collection Funds in the Program Collection Account in accordance with Section
4.03; PROVIDED, that if there are insufficient funds in the Program Collection
Account to satisfy the amounts payable on any Monthly Settlement Date, the
Distributor shall pay the Collection Agent any shortfall on such Monthly
Settlement Date.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. AMENDMENT AND WAIVERS. No amendment, modification,
supplement, termination or waiver of this Agreement shall be effective unless
the same shall be in writing and signed by the Purchaser, the Program
Administrator, the Collection Agent and the Distributor. Any waiver of any
provision of this Agreement, and any consent to any departure by any party to
this Agreement from the terms of any provision of this Agreement, shall be
effective only in the specific instance and for the specific purpose for which
given. No notice to or demand on any party to this Agreement in any case shall
entitle such party to any other or further notice or demand in similar or other
circumstances.
Section 8.02. NOTICES. All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be given or made in accordance with Section 8.03 of the Master
Agreement.
Section 8.03. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of
13
<PAGE> 121
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
Section 8.04. NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on
the part of any party to this Agreement in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or future exercise thereof or the exercise of any other right, power or
privilege. The remedies provided for herein are cumulative and are not exclusive
of any remedies that may be available to the Purchaser or the Program
Administrator at law or in equity.
Section 8.05. TERMINATION. This Agreement shall terminate upon the
date that the Collection Agent receives written notification from the Program
Administrator that the Unamortized Gross Purchase Amount in respect of the
Purchased Portfolio Assets of each Fund has been reduced to zero; PROVIDED that
in any event this Agreement will terminate upon the date that the Collection
Agent receives written notification from the Program Administrator that all
Shares relating to the Purchased Portfolio Assets have either been redeemed or
converted to "A" shares pursuant to Permitted Conversion Features and that all
Program Collections payable in respect of such Purchased Portfolio Assets have
been paid; and PROVIDED, FURTHER, that the obligations under Section 7.01 shall
survive the termination of this Agreement or the earlier resignation or removal
of the Collection Agent.
Section 8.06. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon, and inure to the benefit of, each of the parties hereto and their
respective successors and permitted assigns. In the event the Purchaser does not
purchase Eligible Portfolio Assets relating to Shares of any Fund, the
Distributor may assign its rights to a portion of the amounts actually
distributable to the Distributor pursuant to Section 4.03 (the "ASSIGNED
PORTION") to an assignee unrelated to the Distributor in accordance with the
Master Agreement, and in the event that the Distributor shall secure a
commitment from an assignee to purchase such Assigned Portion, the parties
hereto agree to negotiate in good faith with a view to: (A) amending this
Agreement to: (1) permit such assignee to become a party to this Agreement; (2)
remove such Assigned Portion from the amounts distributable to the Distributor
pursuant to Section 4.03 and providing for such assignee to be entitled to
distributions pursuant to Section 4.03 in respect of the Assigned Portion, and
(B) executing and delivering a mutually satisfactory agreement among the Program
Administrator, the Purchaser, the Collection Agent and such assignee, specifying
their respective rights with respect to the Portfolio Assets.
Section 8.07. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL
BE GOVERNED BY AND BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE
WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS.
Section 8.08. SECURITY INTERESTS. The Distributor, the
Collection Agent, the Program Administrator, the Purchaser hereby acknowledge
that: (a) the Purchaser has assigned and will assign all of its rights under
this Agreement to secure certain borrowings; and (b) the
14
<PAGE> 122
Purchaser intends to assign a portion of its interests hereunder to Placement
Trusts pursuant to Placements.
Section 8.09. COUNTERPARTS. This Agreement may be executed in
several counterparts and by different parties on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same agreement.
15
<PAGE> 123
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first set forth above.
BANKERS TRUST COMPANY,
as Collection
Agent
By: /s/ Louis Bodi
------------------------------------
Name: Louis Bodi
Title: Vice President
PLT FINANCE, L.P.
as Purchaser
By: PLT FINANCE, INC.,
General Partner
By: /s/ Robert T. Fleisher
------------------------------------
Name: Robert T. Fleisher
Title: Vice President
PUTNAM, LOVELL, DE GUARDIOLA &
THORNTON INC.,
as Program Administrator
By: /s/ Michael R. Llodra
------------------------------------
Name: Michael R. Llodra
Title: Vice President
PIONEER FUNDS DISTRIBUTOR, INC.,
as Distributor
By: /s/ Robert L. Butler
------------------------------------
Name: Robert L. Butler
Title: President
16
<PAGE> 124
Exhibit D To
Pioneer Program
Master Agreement
AMENDED AND RESTATED CLASS B SHARES DISTRIBUTION PLAN
[NAME OF FUND]
CLASS B SHARES DISTRIBUTION PLAN, dated as of April 1, 1994 and amended
and restated as of September 30, 1998, of __________________________, a
____________ business trust (the "Trust")
WITNESSETH
WHEREAS, the Trust is engaged in business as an open-end, diversified,
management investment company and is registered under the Investment Company Act
of 1940, as amended (collectively with the rules and regulations promulgated
thereunder, the "1940 Act");
WHEREAS, the Trust intends to distribute shares of beneficial interest
(the "Class B Shares") of the Trust in accordance with Rule 12b-1 promulgated by
the Securities and Exchange Commission under the 1940 Act ("Rule 12b-1"), and
desires to adopt this Class B Shares distribution plan (the "Class B Plan") as a
plan of distribution pursuant to such Rule;
WHEREAS, the Trust desires that Pioneer Funds Distributor, Inc., a
Massachusetts corporation ("PFD") or such other persons as may be appointed
principal underwriter from time to time, provide certain distribution services
for the Trust's Class B Shares in connection with the Class B Plan (PFD and any
successor principal underwriter of the Trust's shares being referred to as an
"Underwriter");
WHEREAS, the Trust has entered into an underwriting agreement (in a
form approved by the Trust's Board of Trustees in a manner specified in Rule
12b-1) with the Underwriter, whereby the Underwriter provides facilities and
personnel and renders services to the Trust in connection with the offering and
distribution of Class B Shares (the "Underwriting Agreement");
WHEREAS, the Trust also recognizes and agrees that (a) the Underwriter
may retain the services of firms or individuals to act as dealers or wholesalers
(collectively, the "Dealers") of the Class B Shares in connection with the
offering of Class B Shares, (b) the Underwriter may compensate any Dealer that
sells Class B Shares in the manner and at the rate or rates to be set forth in
an agreement between the Underwriter and such Dealer and (c) the Underwriter may
make such payments to the Dealers for distribution services out of the fee paid
to the Underwriter hereunder, any deferred sales charges imposed by the
Underwriter in connection with the repurchase of Class B Shares, its profits or
any other source available to it;
<PAGE> 125
WHEREAS, the Trust recognizes and agrees that the Underwriter may
impose certain deferred sales charges in connection with the repurchase of Class
B Shares by the Trust, and the Underwriter may retain (or receive from the
Trust, as the case may be) all such deferred sales charges; and
WHEREAS, the Board of Trustees of the Trust, in considering whether the
Trust should adopt and implement this Class B Plan, has evaluated such
information as it deemed necessary to an informed determination whether this
Class B Plan should be adopted and implemented and has considered such pertinent
factors as it deemed necessary to form the basis for a decision to use assets of
the Trust for such purposes, and has determined that there is a reasonable
likelihood that the adoption and implementation of this Class B Plan will
benefit the Trust and its Class B shareholders;
NOW, THEREFORE, the Board of Trustees of the Trust hereby adopts this
Class B Plan for the Trust as a plan of distribution of Class B Shares in
accordance with Rule 12b-1, on the following terms and conditions:
1. (a) The Trust is authorized to compensate the
Underwriter for (1) distribution services and (2) personal and
account maintenance services performed and expenses incurred
by the Underwriter in connection with the Trust's Class B
Shares. Such compensation shall be calculated and accrued
daily and paid monthly or at such other intervals as the Board
of Trustees may determine.
(b) The amount of compensation payable to the
Underwriter during any one year for distribution services with
respect to Class B Shares shall be its Allocable Portion (as
defined in Section 14 below) of .75% of the Trust's average
daily net assets attributable to Class B Shares for such year
(the "Distribution Fee"). Notwithstanding anything to the
contrary set forth in this Distribution Plan or any
Underwriting Agreement, the Distribution Fee shall not be
terminated or modified (including a modification by change in
the rules relating to the conversion of Class B Shares into
Class A Shares of the Trust) with respect to Class B Shares
(or the assets of the Trust attributable to such Class B
Shares) either (x) issued prior to the date of any termination
or modification or (y) attributable to Class B Shares issued
through one or a series of exchanges of shares of another
investment company for which the Underwriter acts as principal
underwriter which were initially issued prior to the date of
such termination or modification or (z) issued as a dividend
or distribution upon Class B Shares initially issued or
attributable to Class B Shares issued prior to the date of any
such termination or modification (the "Pre-Amendment Class B
Shares") except:
-2-
<PAGE> 126
(i) to the extent required by a change in the
Investment Company 1940 Act, the rules or regulations
under the Act, the Conduct Rules of the National
Association of Securities Dealers, Inc. (the "NASD"),
or an order of any court or governmental agency, in
each case enacted, issued or promulgated after
September 30, 1998,
(ii) in connection with a "Complete Termination" of
this Plan. For purposes of this Plan, a "Complete
Termination" shall have occurred if: (x) this Plan
and the distribution plan for Class B Shares of any
successor trust or fund or any trust or fund
acquiring substantially all of the assets of the
Trust (collectively, the "Affected Funds") is
terminated with respect to all Class B Shares of the
Trust and each Affected Fund then outstanding or
subsequently issued, (y) the payment by the Trust of
Distribution Fees with respect to all Class B Shares
of the Trust and each Affected Fund is terminated and
(z) neither the Trust nor any Affected Fund
establishes concurrently with or subsequent to such
termination of this Plan another class of shares
which has substantially similar characteristics to
the current Class B Shares of the Trust, including
the manner of payment and amount of contingent
deferred sales charge paid directly or indirectly by
the holders of such shares (all of such classes of
shares "Class B Shares"), or
(iii) on a basis, determined by the Board of
Trustees, including a majority of the Qualified
Trustees (as hereinafter defined), acting in good
faith, so long as from and after the effective date
of such modification or termination: (x) neither (1)
the Trust, (2) any Affected Fund nor (3) the
investment advisor or any other sponsor entity (or
their affiliates) of the Trust or any Affected Fund
pay, directly or indirectly, a fee, a trailer fee, or
expense reimbursement to any person for the provision
of personal and account maintenance services (as such
terms is used in the Conduct Rules of the NASD) to
the holder of Class B Shares of the Trust or any
Affected Fund (but the forgoing shall not prevent
payments for transfer agency or subaccounting
services), and (y) the termination or modification of
the Distribution Fee applies with equal effect to
both Pre-Amendment Class B Shares and Post-Amendment
Class B Shares (as defined in Section 7) outstanding
from time to time of the Trust and all Affected
Funds.
-3-
<PAGE> 127
(c) Distribution services and expenses for which an
Underwriter may be compensated pursuant to this Plan include,
without limitation: compensation to and expenses (including
allocable overhead, travel and telephone expenses) of (i)
Dealers, brokers and other dealers who are members of the NASD
or their officers, sales representatives and employees, (ii)
the Underwriter and any of its affiliates and any of their
respective officers, sales representatives and employees,
(iii) banks and their officers, sales representatives and
employees, who engage in or support distribution of the
Trust's Class B Shares; printing of reports and prospectuses
for other than existing shareholders; and preparation,
printing and distribution of sales literature and advertising
materials.
(d) The Underwriter shall be deemed to have performed
all services required to be performed in order to be entitled
to receive its Allocable Portion of the Distribution Fee, if
any, payable with respect to Class B Shares sold through such
Underwriter upon the settlement date of the sale of such Class
B Shares or in the case of Class B Shares issued through one
or a series of exchanges of shares of another investment
company for which the Underwriter acts as principal
underwriter or issued as a dividend or distribution upon Class
B Shares, on the settlement date of the first sale on a
commission basis of a Class B Share from which such Class B
share was derived. The Trust's obligation to pay an
Underwriter its Allocable Portion of the Distribution Fees
payable in respect of the Class B Shares shall be absolute and
unconditional and shall not be subject to dispute, offset,
counterclaim or any defense whatsoever, at law or equity,
including, without limitation, any of the foregoing based on
the insolvency or bankruptcy of such Underwriter. The
foregoing provisions of this Section 1(d) shall not limit the
rights of the Trust to modify or terminate payments under this
Class B Plan as provided in Section 1(b) with respect to
Pre-Amendment Class B Shares or Section 7 with respect to
Post-Amendment Class B Shares.
(e) The amount of compensation paid during any one
year for personal and account maintenance services and
expenses (the "Service Fee") shall be .25% of the Trust's
average daily net assets attributable to Class B Shares for
such year. As partial consideration for personal services
and/or account maintenance services provided by the
Underwriter to the Class B Shares, the Underwriter shall be
entitled to be paid any fees payable under this clause (e)
with respect to Class B Shares for which no dealer of record
exists, where less than all consideration has been paid to a
dealer of record or where qualification standards have not
been met.
-4-
<PAGE> 128
(f) Personal and account maintenance services for
which the Underwriter or any of its affiliates, banks or
Dealers may be compensated pursuant to this Plan include,
without limitation: payments made to or on account of the
Underwriter or any of its affiliates, banks, other brokers and
dealers who are members of the NASD, or their officers, sales
representatives and employees, who respond to inquiries of,
and furnish assistance to, shareholders regarding their
ownership of Class B Shares or their accounts or who provide
similar services not otherwise provided by or on behalf of the
Trust.
(g) The Underwriter may impose certain deferred sales
charges in connection with the repurchase of Class B Shares by
the Trust and the Underwriter may retain (or receive from the
Trust as the case may be) all such deferred sales charges.
(h) The Trust has agreed in the Underwriting
Agreement to certain restrictions on the Trust's ability to
modify or waive certain terms of the Trust's Class B Shares or
the contingent deferred sales charge with respect to
Pre-Amendment Class B Shares.
(i) Appropriate adjustments to payments made pursuant
to clauses (b) and (d) of this paragraph 1 shall be made
whenever necessary to ensure that no payment is made by the
Trust in excess of the applicable maximum cap imposed on asset
based, front-end and deferred sales charges by Section 2830(d)
the Conduct Rules of the NASD.
2. The Trust understands that agreements between the Underwriter
and Dealers may provide for payment of fees to Dealers in connection with the
sale of Class B Shares and the provision of services to shareholders of the
Trust. Nothing in this Class B Plan shall be construed as requiring the Trust to
make any payment to any Dealer or to have any obligations to any Dealer in
connection with services as a dealer of the Class B Shares. The Underwriter
shall agree and undertake that any agreement entered into between the
Underwriter and any Dealer shall provide that such Dealer shall look solely to
the Underwriter for compensation for its services thereunder and that in no
event shall such Dealer seek any payment from the Trust.
3. Notwithstanding anything to the contrary in this Distribution
Plan or any Underwriting Agreement, the Underwriter may assign, sell or pledge
(collectively, "Transfer") its rights to its Allocable Portion of any
Distribution Fees under this Plan. Upon receipt of notice of such Transfer, the
Trust shall pay to the assignee, purchaser or pledgee (collectively with their
subsequent transferees, "Transferees"), as third-party beneficiaries, such
portion of the Distribution Fees
-5-
<PAGE> 129
payable to the Underwriter as provided in written instructions (the "Allocation
Instructions") from the Underwriter and said Transferee to the Trust. In the
absence of Allocation Instructions, the Trust shall have no obligations to a
Transferee.
4. Nothing herein contained shall be deemed to require the Trust
to take any action contrary to its Agreement and Declaration of Trust, as it may
be amended or restated from time to time, or By-Laws or any applicable statutory
or regulatory requirement to which it is subject or by which it is bound, or to
relieve or deprive the Trust's Board of Trustees of the responsibility for and
control of the conduct of the affairs of the Trust; it being understood that
actions taken pursuant to Section 1(b) shall not be considered such an action
described above.
5. This Class B Plan shall become effective upon approval by (i)
a "majority of the outstanding voting securities" of Class B of the Trust, (ii)
a vote of the Board of Trustees, and (iii) a vote of a majority of the Trustees
who are not "interested persons" of the Trust and who have no direct or indirect
financial interest in the operation of the Class B Plan or in any agreements
related to the Class B Plan (the "Qualified Trustees"), such votes with respect
to (ii) and (iii) above to be cast in person at a meeting called for the purpose
of voting on this Class B Plan.
6. All of the terms of this Distribution Plan, as amended and
restated as of September 30, 1998, are intended to apply in respect of all
Pre-Amendment Class B Shares and to the Distribution Fees payable in respect of
any thereof. This Class B Plan will remain in effect indefinitely, provided that
such continuance is "specifically approved at least annually" by a vote of both
a majority of the Trustees of the Trust and a majority of the Qualified
Trustees. If such annual approval is not obtained, this Class B Plan shall
expire on the annual anniversary of the adoption of this Plan following the last
such approval.
7. Subject to the limitation set forth in Section 1(b) with
respect to Pre-Amendment Class B shares, this Class B Plan may be amended at any
time by the Board of Trustees with respect to Class B Shares (and the assets
attributable to such Class B Shares) which are not Pre-Amendment Class B Shares
("Post-Amendment Class B Shares"); provided that this Class B Plan may not be
amended to increase materially the limitations on the annual percentage of
average net assets which may be expended hereunder without the approval of
holders of a "majority of the outstanding voting securities" of Class B of the
Trust and may not be materially amended in any case without a vote of a majority
of both the Trustees and the Qualified Trustees. This Class B Plan may be
terminated at any time, subject to Section 1(b), by a vote of a majority of the
Qualified Trustees or by a vote of the holders of a "majority of the outstanding
voting securities" of Class B of the Trust.
8. The Trust and the Underwriter shall provide to the Trust's
Board of Trustees, and the Board of Trustees shall review, at least quarterly, a
written report of
-6-
<PAGE> 130
the amounts expended under this Class B Plan and the purposes for which such
expenditures were made.
9. While this Class B Plan is in effect, the selection and
nomination of Qualified Trustees shall be committed to the discretion of the
Trustees who are not "interested persons" of the Trust.
10. For the purposes of this Class B Plan, the terms "interested
persons," "majority of the outstanding voting securities" and "specifically
approved at least annually" are used as defined in the 1940 Act.
11. The Trust shall preserve copies of this Class B Plan, and each
agreement related hereto and each report referred to in Paragraph 7 hereof
(collectively, the "Records"), for a period of not less than six (6) years from
the end of the fiscal year in which such Records were made and, for a period of
two (2) years, each of such Records shall be kept in an easily accessible place.
12. This Class B Plan shall be construed in accordance with the
laws of The Commonwealth of Massachusetts and the applicable provisions of the
1940 Act.
13. If any provision of this Class B Plan shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of the
Class B Plan shall not be affected thereby.
14. Payments under this Class B Plan shall be allocated between
PFD and any successor Underwriter or co-Underwriter (each an Underwriter's
"Allocable Portion) as provided in the Allocation Procedures appended hereto.
-7-
<PAGE> 131
Exhibit E To
Pioneer Program
Master Agreement
FORM OF AMENDED AND RESTATED UNDERWRITING AGREEMENT
THIS UNDERWRITING AGREEMENT, dated this 31st day of October, 1997 and
amended and restated as of the 30th day of September 1998, by and between
Pioneer Fund, a Delaware business trust ("Trust"), and Pioneer Funds
Distributor, Inc., a Massachusetts corporation (the "Underwriter")
WITNESSETH
WHEREAS, the Trust is registered as an open-end, diversified,
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), and has filed a registration statement (the
"Registration Statement") with the Securities and Exchange Commission (the
"Commission") for the purpose of registering shares of beneficial interest for
public offering under the Securities Act of 1933, as amended;
WHEREAS, the Underwriter engages in the purchase and sale of securities
both as a broker and a dealer and is registered as a broker-dealer with the
Commission and is a member in good standing of the National Association of
Securities Dealers, Inc. (the "NASD");
WHEREAS, the parties hereto deem it mutually advantageous that the
Underwriter should act as Principal Underwriter, as defined in the 1940 Act, for
the sale to the public of the shares of beneficial interest of the securities
portfolio of each series of the Trust which the Trustees may establish from time
to time (individually, a "Portfolio" and collectively, the "Portfolios"); and
NOW, THEREFORE, in consideration of the mutual covenants and benefits
set forth herein, the Trust and the Underwriter do hereby agree as follows:
1. The Trust hereby grants to the Underwriter the right and
option to purchase shares of beneficial interest of each class of each Portfolio
of the Trust(the "Shares") for sale to investors either directly or indirectly
through other broker-dealers. The Underwriter is not required to purchase any
specified number of Shares, but will purchase from the Trust only a sufficient
number of Shares as may be necessary to fill unconditional orders received from
time to time by the Underwriter from investors and dealers.
2. The Underwriter shall offer Shares to the public at an
offering price based upon the net asset value of the Shares, to be calculated
for each class of shares as described in the Registration Statement, including
the Prospectus, filed with the Commission and in effect at the time of the
offering, plus sales charges as approved
<PAGE> 132
by the Underwriter and the Trustees of the Trust and as further outlined in
Pioneer's Prospectus. The offering price shall be subject to any provisions set
forth in the Prospectus from time to time with respect thereto, including,
without limitation, rights of accumulation, letters of intent, exchangeability
of shares, reinstatement privileges, net asset value purchases by certain
persons and reinvestments of dividends and capital gain distributions.
3. In the case of all Shares sold to investors through other
broker-dealers, a portion of applicable sales charges will be reallowed to such
broker-dealers who are members of the NASD or, in the case of certain sales by
banks or certain sales to foreign nationals, to brokers or dealers exempt from
registration with the Commission. The concession reallowed to broker-dealers
shall be set forth in a written sales agreement and shall be generally the same
for broker-dealers providing comparable levels of sales and service.
4. This Agreement shall terminate on any anniversary hereof if
its terms and renewal have not been approved by a majority vote of the Trustees
of the Trust voting in person, including a majority of its Trustees who are not
"interested persons" of the Trust and who have no direct or indirect financial
interest in the operation of the Underwriting Agreement (the "Qualified
Trustees"), at a meeting of Trustees called for the purpose of voting on such
approval. This Agreement may also be terminated at any time, without payment of
any penalty, by the Trust or 60 days' written notice to the Underwriter, or by
the Underwriter upon similar notice to Pioneer. This Agreement may also be
terminated by a party upon five (5) days' written notice to the other party in
the event that the Commission has issued an order or obtained an injunction or
other court order suspending effectiveness of the Registration Statement
covering the Shares of Pioneer. Finally, this Agreement may also be terminated
by the Trust upon five (5) days' written notice to the Underwriter provided
either of the following events has occurred: (i) the NASD has expelled the
Underwriter or suspended its membership in that organization; or (ii) the
qualification, registration, license or right of the Underwriter to sell Shares
in a particular state has been suspended or cancelled in a state in which sales
of the Shares during the most recent 12-month period exceeded 10% of all Shares
held by the Underwriter during such period.
5. The compensation for the services of the Underwriter as a
principal underwriter under this Agreement shall be:
With respect to Class A Shares (i) that part of the sales charge which
is retained by the Underwriter after allowance of discounts to dealers
as set forth, if required, in the Registration Statement, including the
Prospectus, filed with the Commission and in effect at the time of the
offering, as amended, and (ii) those amounts payable to the Underwriter
as reimbursement of expenses pursuant to any distribution plan which
may be in effect.
-2-
<PAGE> 133
With respect to Class B Shares (i) the Underwriter's Allocable Portion
(as defined in Section 9) of the Distribution Fee, if any, payable from
time to time to the Underwriter under the Pioneer's Class B
Distribution Plan and (ii) the contingent deferred sales charge payable
with respect to Class B Shares sold through the Underwriter as set
forth in the Registration Statement, including the Prospectus, filed
with the Commission and in effect at the time of the sale of such Class
B Shares.
With respect to Class C Shares (i) the Distribution Fee, if any,
payable from time to time to the Underwriter under the Pioneer's Class
C Distribution Plan and (ii) the contingent deferred sales charge
payable with respect to Class C Shares sold through the Underwriter as
set forth in the Registration Statement, including the Prospectus,
filed with the Commission and in effect at the time of the sale of such
Class C Shares.
With respect to Class Y Shares, the Underwriter shall not be entitled
to any compensation.
With respect to any future class of shares, the Underwriter shall be
entitled to such consideration as the Trust and the Underwriter shall
agree at the time such class of Shares is established.
Notwithstanding anything to the contrary herein, subsequent to the issuance of a
Class B Share the Trust agrees not take any action to waive or change any
contingent deferred sales charge (including, without limitation, by change in
the rules applicable to conversion of Class B Shares into another class) in
respect of such Class B Shares, except (i) as provided in the Trust's Prospectus
or Statement of Additional Information in effect on September 30, 1998, or (ii)
as required by a change in the 1940 Act and the rules and regulations
thereunder, the Conduct Rules of the NASD or any order of any court or
governmental agency enacted, issued or promulgated after September 30, 1998.
Neither the termination of the Underwriter's role as principal underwriter of
the Class B Shares nor the termination of this Agreement nor the termination or
modification of the Class B Distribution Plan shall terminate the Underwriter's
right to the contingent deferred sales charge with respect to Class B Shares
sold through said Underwriter or Class B Shares issued through one or a series
of exchanges of shares of another investment company for which the Underwriter
acts as principal underwriter, in each case with respect to Class B Shares or
their predecessors initially issued prior to such termination or modification
("Pre-Amendment Class B Shares"). Except as provided in the preceding sentences
and notwithstanding any other provisions of the Agreement or the Class B
Distribution Plan, the Underwriter is entitled to its Allocable Portion of the
contingent deferred sales charges payable in respect of the Pre-Amendment Class
B Shares shall be absolute and unconditional and shall not be subject to
dispute, offset, counterclaim or
-3-
<PAGE> 134
any defense whatsoever, at law or equity, including, without limitation, any of
the foregoing based on the insolvency or bankruptcy of such Underwriter.
6. Notwithstanding anything to the contrary set forth in the
Distribution Plan or this Agreement, the Trust agrees to comply with respect to
Pre-Amendment Shares with the provision of Sections 1(b), (d), (g) and (h) and
Section 4 and Section 6 of the Trust's Amended and Restated Class B Distribution
Plan as thought such provision were set forth in this Agreement.
7. Nothing contained herein shall relieve the Trust of any
obligation under its management contract or any other contract with any
affiliate of the Underwriter.
8. Notwithstanding anything to the contrary set forth in the
Class B Distribution Plan or this Agreement the Trust acknowledges that the
Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to
Distribution Fees and contingent deferred sales charges with respect to Class B
Shares. Upon receipt of notice of such Transfer, the Trust shall pay to the
assignee, purchaser or pledgee (collectively with their subsequent transferees,
"Transferees"), as third party beneficiaries, such portion of the Distribution
Fees and contingent deferred sales charges payable to the Underwriter as
provided in written instructions (the "Allocation Instructions") from the
Underwriter to the Trust and shall pay the balance, if any, to the Underwriter.
In the absence of Allocation Instructions, the Trust shall have no obligations
to a Transferee.
9. Payments of the Distribution Fee and contingent deferred sales
charges with respect to Class B shares shall be allocated between the
Underwriter (or its Transferee) and such co- or successor principal underwriter
(each an "Allocable Portion"), as provided in the Allocation Procedures attached
hereto.
10. The parties to this Agreement acknowledge and agree that all
liabilities arising hereunder, whether direct or indirect, of any nature
whatsoever, including without limitation, liabilities arising in connection with
any agreement of the Trustor its Trustees as set forth herein to indemnify any
party to this Agreement or any other person, if any, shall be satisfied out of
the assets of the Trust and that no Trustee, officer or holder of shares shall
be personally liable for any of the foregoing liabilities. The Trust's Agreement
and Declaration of Trust describes in detail the respective responsibilities and
limitations on liability of the Trustees, officers, and holders of Shares.
11. This Agreement shall automatically terminate in the event of
its assignment (as that term is defined in the 1940 Act).
12. In the event of any dispute between the parties, this
Agreement shall be construed according to the laws of The Commonwealth of
Massachusetts.
-4-
<PAGE> 135
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized officers and their seals to be hereto
affixed as of the day and year first above written.
ATTEST: PIONEER FUND
By:
- -------------------------------- -------------------------------
Joseph P. Barri John F. Cogan, Jr.
Secretary President
ATTEST: PIONEER FUNDS DISTRIBUTOR, INC.
By:
- -------------------------------- -------------------------------
Joseph P. Barri
Clerk President
-5-
<PAGE> 136
Exhibit F To
Pioneer Program
Master Agreement
FORM OF IRREVOCABLE PAYMENT INSTRUCTION
[Name and Address
of Distributor]
[Date]
Each of the Funds and Transfer Agents
and Custodians listed on Schedule I hereto
You are hereby notified that Pioneer Funds Distributor, Inc. (the
"DISTRIBUTOR") and PLT Finance, L.P. (the "PURCHASER") have entered into a
Pioneer Program Master Agreement, dated as of September 30, 1998 (as from time
to time amended, the "MASTER AGREEMENT") with the "Parent," the "Advisor," the
"Program Administrator" and the "Collection Agent" (each as defined therein),
pursuant to which (defined therein) the Distributor has agreed from time to time
to sell, convey, assign and transfer to the Purchaser all of its right, title
and interest in, to and under the Purchased Portfolio Assets (defined therein)
relating to the sales of Shares (defined therein) relating to each of the Funds
(defined therein) during certain specified periods.
Capitalized terms used herein shall have the respective meanings
ascribed thereto in Schedule X to the Master Agreement.
Each Fund or Transfer Agent, as applicable, is hereby directed to
make, or cause to be made, all payments in respect of all amounts paid or
payable by each Fund or a Fund's shareholder pursuant to the Distributor's
Contract, the Distribution Plan, and the Contingent Deferred Sales Charge
arrangements in respect of the Portfolio Assets relating to such Fund after the
date hereof and all proceeds therefrom (hereinafter, "PAYMENTS"), which
otherwise would be payable by the Fund or a Fund's shareholder to the
Distributor, by wire in immediately available funds:
(A) in the case of Contingent Deferred Sales Charges (except
as described in (B) below), directly from an account owned by the
Fund, Transfer Agent or Selling Agent withholding the same (without
any intermediate commingling with funds of the Distributor ) to the
account of Bankers Trust Company (the "COLLECTION AGENT") entitled
the "Pioneer Funding Program Collection Account" (the "PROGRAM
COLLECTION ACCOUNT"): Bankers Trust Company, ABA No. 021001033,
Account No. 00380525, Attn: Structured Finance, for further credit
to Account No. 26447 (ref: PLT Finance - Pioneer Funding Collection
Account) established and maintained by the Collection Agent at Four
Albany Street, New York, New York 10006 no later than the next
Business Day following the date on
<PAGE> 137
which the same are withheld by the Fund, Transfer Agent or Selling
Agent in question; and
(B) in the case of Contingent Deferred Sales Charges withheld
by Selling Agents then listed on Exhibit I to the Program Allocation
Procedures and all other Payments, directly (without any
intermediate commingling with funds of the Distributor) from an
account owned by the Fund (or a single account by such Fund and
other Funds) to the Program Collection Account at the
above-referenced address on or before the Fifth (5th) Business Day,
or in the case of such withholdings or Payments by Merrill Lynch,
the fifteenth (15th) calendar day, of the calendar month immediately
following the calendar month to which they relate.
You are further notified that:
1. This Irrevocable Payment Instruction is delivered on behalf of
the Purchaser and the Program Administrator and is irrevocable and cannot be
changed without the consent of the Purchaser, the Program Administrator and the
Distributor;
2. By your acknowledgment, you authorize the Distributor to deliver
a copy of this Irrevocable Payment Instruction and your acknowledgment to the
Purchaser, and the Program Administrator and their respective successors and
assigns; and
3. By its acknowledgment, each Fund agrees to make payment due from
it in compliance with the directions herein. By its acknowledgment, each
Transfer Agent agrees to make payment due from a shareholder of the Fund in
compliance with the directions herein.
THIS IRREVOCABLE PAYMENT INSTRUCTION SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO ITS
CONFLICTS OF LAWS PROVISIONS.
F-2
<PAGE> 138
By your execution of this Irrevocable Payment Instruction you hereby
acknowledge and agree to abide by the foregoing instructions, it being
understood that such acknowledgment and waiver does not constitute a waiver of
any defenses.
PIONEER FUNDS DISTRIBUTOR, INC.
By:
---------------------------
Authorized Signatory
PLT FINANCE, L.P.
By:
---------------------------
Authorized Signatory
Acknowledged and
Agreed to as of the date
first written above:
Each of the Funds listed
on Schedule I hereto
By:
----------------------------
Authorized Signatory
Each of the Transfer Agents
listed on Schedule I hereto
By:
----------------------------
Authorized Signatory
Each of the Custodian's
listed on Schedule I hereto
By:
----------------------------
Authorized Signatory
F-3
<PAGE> 139
Exhibit G To
Pioneer Program
Master Agreement
FORMS OF OPINIONS
[Intentionally Omitted]
<PAGE> 140
Exhibit H To
Pioneer Program
Master Agreement
PIONEER
INVESTOR REPORT
<TABLE>
<S> <C> <C> <C> <C> <C>
For the Month Ended: 9/30/98
Report Date: 10/10/98
PART 1 PROGRAM COLLECTION ACCOUNT BALANCE
A. Deposits to Program Collection Account for Current Month 0.00
B. 12b-1s during most recent calendar month (4C Total) 1,848.00
C. CDSCs charged during most recent calendar month 1,500.00
D. Other amounts (e.g. indemnity payments) deposited to Program
Collection Account during most recent calendar month (Attach
Exhibit C with detail) 0.00
E. Does 1A = 1B + 1C + 1D? No
G. Amount to be paid to Program Funding and Collection Agent (3C) 500.00
PART 2 MERRILL LYNCH ALLOCATION (TO GROSS UP CDSC WAIVERS)
A. Merrill Lynch AUM end of current calendar month 500,000.00
B. Merrill Lynch Percentage of Program 16.67%
PART 3 INPUTS
A. Month Ended 9/30/98
A1. # of days in Month 30
B. Report Date 10/10/98
C. Monthly Collection Agent Fee (fixed at $500.00 until further
notice by Progam Administrator) 500.00
PART 4 DETAILED FUND INFORMATION
FUND NAME SAMPLE FUND 1 SAMPLE FUND 2 SAMPLE FUND 3 TOTAL
</TABLE>
<PAGE> 141
<TABLE>
<CAPTION>
REPORT FUND NUMBER PLEASE INSERT PLEASE INSERT PLEASE INSERT
- ------------------ ------------- ------------- -------------
<S> <C> <C> <C> <C>
A. Average NAV for most recent calendar month 1,000,000 1,000,000 1,000,000 3,000,000
B. Monthly 12b-1 fee rate 0.0616% 0.0616% 0.0616% 0.0616%
C. 12b-1 fees accrued during most recent
calendar month 616 616 616 1,849
D. 12b-1 fees deposited to Program Collection
Account 616 616 616 1,848
E. Does 4D = 4C Yes Yes Yes Yes
F. Year-to-date average NAV at end of most
recent calendar month 1,000,000 1,000,000 1,000,000 3,000,000
G. NAV of redeemed shares during most recent
calendar month 12,000 12,000 12,000 36,000
H. Year-to-date NAV of redeemed shares 12,000 12,000 12,000 36,000
I. Monthly Redemption rate (4G/4A) 1.20% 1.20% 1.20% 1.20%
J. Year-to-date Redemption rate (4H/4F) 1.20% 1.20% 1.20% 1.20%
J1. Effective CDSC Rate (4M/4G) 4.17% 4.17% 4.17% 4.17%
K. CDSCs deposited to Program Collection
Account from Selling Agents 250 250 250 750
L. Transfer Agent CDSCs deposited to Program
Collection Account 250 250 250 750
--------- --------- --------- ------------
M. Total CDSCs deposited to Program Collection
Account 500 500 500 1,500
N. NAV of redeemed shares which were exempt
from CDSC 200 200 200 600
O. Free redemption rate most recent calendar
month (4N/4A) 0.024% 0.024% 0.024% 0.024%
P. Free redemption rate 2nd prior month 0.000% 0.000% 0.000% 0.000%
Q. Free redemption rate 3rd prior month 0.000% 0.000% 0.000% 0.000%
R. Total free redemption rate over 3 previous
months (4O + 4P + 4Q) 0.024% 0.024% 0.024% 0.024%
S. Free exchanges into fund during most recent
calendar month 1,000 1,000 1,000 3,000
T. Exchange rate into fund (4S/4A) 0.10% 0.10% 0.10% 0.10%
U. Free exchanges out of fund during most
recent calendar month 1,000 1,000 1,000 3,000
V. Exchange rate out of fund (4U/4A) 0.10% 0.10% 0.10% 0.10%
W. NAV per Share at end of most recent calendar
month 10.00 10.00 10.00 N/A
X. NAV per Share beginning of previous calendar
month 9.50 9.50 9.50 N/A
Y. NAV per Share monthly change ((4W/4X) - 1) 5.3% 5.3% 5.3% 5.3%
Z. Dividends (not inc. cap gains) paid during
most recent calendar month 500 500 500 1,500.00
AA. Reivested dividend during the most recent
calendar month 250 250 250 750.00
AB. Dividend reinvestment rate (4AA/4Z) 50.0% 50.0% 50.0% 50.0%
AC. Capital gains paid during the most recent
calendar month 500 500 500 1,500.00
AD. Reinvested capital gains during the most
recent calendar month 250 250 250 750.00
AE. Capital gains reinvestment rate (4AC/4AD) 50.0% 50.0% 50.0% 50.0%
AF. Capital gains and Dividends paid during
most recent calendar month 1,000 1,000 1,000 3,000.00
AG. Total reinvestmenst during the most recent
calendar month 500 500 500 1,500.00
AH. Total reinvestment rate (4AG/4AF) 50.0% 50.0% 50.0% 50.0%
AI. Ending NAV for most recent calendar month 1,000,000 1,000,000 1,000,000 3,000,000.00
AJ. Percentage of Program 33.33% 33.33% 33.33% 100.00%
</TABLE>
PART 5 MONTHLY FUNDING INFORMATION
---------------------
Fund Name Fund Number Sales
- --------- ----------- =====================
<PAGE> 142
Total $ -
PART 6 COMPLIANCE TESTS
A. Weighted average NAV change during previous month 5.3%
B. Does 6A exceed -25%? Yes
C. Free Redemptions over previous 3 months 0.024%
D. Is 6C less than 0.50%? Yes
This Investor Report has been been reviewed by a Responsible Officer of Pioneer.
No Event of Termination has occurred under the Financing Program.
Signed ___________________
Name _____________________
Title ____________________
SCHEDULE A FOOTNOTES
SCHEDULE B BACK-UP SCHEDULE CHECKLIST
<PAGE> 143
--------------------
To Come X
--------------------
--------------------
To Come X
--------------------
--------------------
To Come X
--------------------
SCHEDULE C DETAIL OF OTHER AMOUNTS PAID TO PROGRAM COLLECTION ACCOUNT
(IF NEEDED)
SCHEDULE D MONTHLY SUMMARY OF SHARES SOLD BY CLASS
<PAGE> 144
Exhibit I To
Pioneer Program
Master Agreement
FORM OF ADDITIONAL ELIGIBLE FUND ADDENDUM
Reference is hereby made to that certain Pioneer Program Master
Agreement, dated as of September 30, 1998 (as from time to time amended,
supplemented, waived or modified, the "MASTER AGREEMENT"), among The Pioneer
Group, Inc., Pioneering Management Corporation, Pioneer Funds Distributor, Inc.,
PLT Finance, L.P., Putnam, Lovell, de Guardiola & Thornton Inc. and Bankers
Trust Company, as Collection Agent. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings assigned to such
terms in the Master Agreement.
Pursuant to the terms of Section 8.17 of the Master Agreement, the
Distributor hereby requests that [INSERT NAME OF FUND] a series of [INSERT NAME
OF COMPANY], an additional Eligible Fund, become a "Fund" under the Master
Agreement on the Addition Effective Date.
On and as of the Addition Effective Date, (i) such additional
Eligible Fund shall become a Fund [, and such Company shall become a Company,]
under and for all purposes of the Master Agreement and the Purchase Agreement,
(ii) the Master Agreement and the Purchase Agreement shall be deemed to be
supplemented to reflect the addition of such additional Eligible Fund [and
Company], (iii) Annex A to this Additional Eligible Fund Addendum shall be
deemed to be made a part of Schedule I to the Master Agreement, and (iv) any
reference in the Master Agreement to the effectiveness on the date of the Master
Agreement of, or any change or modification since the date of the Master
Agreement to, the Distributor's Contract, the Distribution Plan, the Prospectus,
the Contingent Deferred Sales Charge arrangement or Fundamental Investment
Objectives and Policies in respect of such additional Eligible Fund shall be
amended to refer to the effectiveness thereof on, and any change or modification
thereof since, the Addition Effective Date.
In addition on the Addition Effective Date the [SPECIFY PROGRAM
DOCUMENT] shall be amended as follows: [SPECIFY NECESSARY AMENDMENTS, IF
ANY, TO WHICH THE PROGRAM ADMINISTRATOR HAS CONSENTED].
The Parent, the Distributor and the Advisor represent and warrant to
the Program Administrator and the Purchaser that, on and immediately after the
Addition Effective Date, (i) their representations and warranties contained in
Article IV of the Master Agreement are true and correct in all respects (ii) no
Event of Termination (or event which with the passage of time or notice, or
both, would constitute an Event of Termination) has occurred, and (iii) the
conditions precedent set forth in Article III to the Master Agreement are
satisfied.
The Addition Effective Date shall occur when (a) a counterpart
hereof, signed by the Parent, the Distributor, the Advisor, the Purchaser and
the Program Administrator has been
<PAGE> 145
received by the Program Administrator, and (b) the other requirements described
in Section 8.17 of the Master Agreement have been fully satisfied.
THE PIONEER GROUP, INC.,
as Parent
By:___________________________
Name:
Title:
PIONEER FUNDS DISTRIBUTOR, INC.,
as Distributor and Program Servicer Agent
By:__________________________
Name:
Title:
PIONEERING MANAGEMENT CORPORATION,
as Advisor
By:_________________________
Name:
Title:
PLT FINANCE, L.P.,
as Purchaser
by PLT Finance, Inc.,
its General Partner
By:_________________________
Name:
Title:
I-2
<PAGE> 146
PUTNAM, LOVELL, DE GUARDIOLA & THORNTON INC.,
as Program Administrator
By:__________________________
Name:
BANKERS TRUST COMPANY,
as Collection Agent
By:_________________________
Name:
Title:(1)
- --------------------
(1) Required if Program Collection Agency Agreement is to be amended.
I-3
<PAGE> 1
EXHIBIT 10.6
THE PIONEER GROUP, INC.
CREDIT AGREEMENT
AMENDMENT NO. 4
This Agreement, dated as of April 21, 1998, is among The Pioneer Group,
Inc., a Delaware corporation (the "Company"), certain of its subsidiaries listed
on the signature pages hereto, the Lenders (as defined in the Credit Agreement
referenced below) and BankBoston, N.A., f/k/a The First National Bank of Boston,
as agent (the "Agent") for itself and the other Lenders. The parties agree as
follows:
1. REFERENCE TO CREDIT AGREEMENT; DEFINITIONS. Reference is made to the Credit
Agreement dated as of June 6, 1996, among the Company, certain of its
subsidiaries, the Lenders and the Agent (as amended, modified and in effect
prior to giving effect to this Agreement, the "Credit Agreement"). Terms defined
in the Credit Agreement as amended hereby (the "Amended Credit Agreement") and
not otherwise defined herein are used herein with the meanings so defined.
Except as the context otherwise explicitly requires, the capitalized terms
"Section" and "Exhibit" refer to sections hereof and exhibits hereto.
2. AMENDMENT TO CREDIT AGREEMENT. Subject to all of the terms and conditions
hereof and in reliance upon the representations and warranties set forth in
Section 3, Section 1.9 of the Credit Agreement is amended to read in its
entirety as follows:
"1.9. "B SHARE CONVERSION DATE" means the earlier of July 21, 1998 or
such later date as determined in accordance with Section 2.2.3."
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders to enter
into this Agreement, the Company represents and warrants to each of the Lenders
that:
3.1. NO DEFAULT. Immediately before and after giving effect to the
amendments set forth in Section 2, no Default will exist.
3.2. INCORPORATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties set forth in Section 8 of the Credit Agreement
are true and correct on the date hereof as if originally made on and as of the
date hereof (except to the extent any representation or warranty refers to a
specific earlier date).
4. GENERAL. The Amended Credit Agreement and all of the other Credit Documents
are each confirmed as being in full force and effect. This Agreement, the
Amended Credit Agreement and the other Credit Documents referred to herein or
therein constitute the entire understanding of the parties with respect to the
subject matter hereof and thereof and supersede all prior and current
understandings and agreements, whether written or oral, with respect to such
subject matter. The invalidity or unenforceability of any provision hereof shall
not affect the validity or enforceability of any other term or
<PAGE> 2
provision hereof. The headings in this Agreement are for convenience of
reference only and shall not alter, limit or otherwise affect the meaning
hereof. Each of this Agreement and the Amended Credit Agreement is a Credit
Document and may be executed in any number of counterparts, which together shall
constitute one instrument, and shall bind and inure to the benefit of the
parties and their respective successors and assigns, including as such successor
and assigns all holders of any Note. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS (OTHER THAN THE CONFLICT OF LAWS RULES) OF
THE COMMONWEALTH OF MASSACHUSETTS.
2
<PAGE> 3
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
THE PIONEER GROUP, INC.
By: /s/ William H. Keough
---------------------------------------------
Title: Senior Vice President, Chief Financial
Officer and Treasurer
60 State Street
Boston, Massachusetts 02109-1820
PIONEERING MANAGEMENT CORPORATION
By: /s/ William H. Keough
---------------------------------------------
Title: Senior Vice President, Chief Financial
Officer and Treasurer
PIONEER MANAGEMENT (IRELAND) LTD.
By: /s/ John F. Cogan, Jr.
---------------------------------------------
Title: Chairman and President of
The Pioneer Group, Inc.
60 State Street
Boston, Massachusetts 02109-1820
PIONEER FUNDS DISTRIBUTOR, INC.
By: /s/ William H. Keough
---------------------------------------------
Title: Senior Vice President, Chief Financial
Officer and Treasurer
60 State Street
Boston, Massachusetts 02109-1820
PIONEERING SERVICES CORP.
By: /s/ William H. Keough
---------------------------------------------
Title: Senior Vice President, Chief Financial
Officer and Treasurer
60 State Street
Boston, Massachusetts 02109-1820
3
<PAGE> 4
BANKBOSTON, N.A.
By: /s/ Karen A. Gallagher
--------------------------------
Title: Vice President
Financial Institutions Division
100 Federal Street - 15th Floor
Boston, Massachusetts 02110
Telecopy: (617) 434-1537
Telex: 940581
THE BANK OF NEW YORK
By: /s/ David C. Britton
--------------------------------
Title: Vice President
One Wall Street, OWS-1
Securities Industry Division
New York, New York 10286
Telecopy: (212) 809-9575
Telex:
SOCIETE GENERALE
By: /s/ Woody Littlefield
--------------------------------
Title: Vice President
1221 Avenue of the Americas
New York, New York 10020
Telecopy: (212) 278-7153
4
<PAGE> 5
STATE STREET BANK & TRUST COMPANY
By: /s/ Michael St. Jean
--------------------------------
Title: Vice President
225 Franklin Street, 8th Floor
Asset-Based Finance
Boston, Massachusetts 02110
Telecopy: (617) 338-4041
BANQUE NATIONALE DE PARIS
By: /s/ Laurent Vanderzyppe /s/ William Shaheen
--------------------------------------------
Title: Vice President Vice President
499 Park Avenue, 2nd Floor
New York, New York 10022
Telecopy: (212)) 415-9707
MELLON BANK, N.A.
By: /s/ Susan M. Whitewood
--------------------------------
Title: Vice President
One Mellon Bank Center
Mail Code: 1510370
Pittsburgh, Pennsylvania 15258
Telecopy: (412) 234-8087
5
<PAGE> 1
EXHIBIT 11
THE PIONEER GROUP, INC.
COMPUTATION OF EARNINGS PER SHARE (UNAUDITED)
(DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS NINE MONTHS
ENDED ENDED
SEPTEMBER 30, SEPTEMBER 30,
COMPUTATION FOR ------------------------ ------------------------
CONSOLIDATED STATEMENT OF INCOME 1998 1997 1998 1997
- -------------------------------- ---- ---- ---- ----
<S> <C> <C> <C> <C>
Net (loss) income from continuing operations............ ($15,937) $8,926 ($16,811) $21,855
Income (loss) from discontinued Russian banking
operations............................................ ($540) $596 ($6,449) ($49)
---------- ----------- ---------- -----------
Net (Loss) Income (1)................................... ($16,477) $9,522 ($23,260) $21,806
========== =========== ========== ===========
Basic Earnings Per Share Calculation:
Weighted average number of common shares
outstanding......................................... 25,207,000 24,857,000 25,091,000 24,838,000
Basic Earnings Per Share:
Continuing operations................................... ($0.63) $0.36 ($0.67) $0.88
Discontinued operations................................. ($0.02) $0.02 ($0.26) ($0.00)
---------- ----------- ---------- -----------
($0.65) $0.38 ($0.93) $0.88
========== =========== ========== ===========
Diluted Earnings Per Share Calculation:
Weighted average number of common shares
outstanding......................................... 25,207,000 24,857,000 25,091,000 24,838,000
Dilutive effect of stock options as common stock
equivalents......................................... 0 730,000 251,000 706,000
Dilutive effect of restricted stock proceeds as common
stock equivalents................................... 0 101,000 (17,000) 45,000
---------- ----------- ---------- -----------
Weighted average number of shares outstanding as
adjusted............................................ 25,207,000 25,688,000 25,325,000 25,589,000
Diluted Earnings Per Share:
Continuing operations................................... ($0.63) $0.35 ($0.67) $0.85
Discontinued operations................................. ($0.02) $0.02 ($0.25) ($0.00)
---------- ----------- ---------- -----------
($0.65) $0.37 ($0.92) $0.85
========== =========== ========== ===========
</TABLE>
- ---------------
(1) These amounts agree with the related amounts in the Consolidated Statements
of Operations.
2
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<EXCHANGE-RATE> 1
<CASH> 50,068
<SECURITIES> 4,079
<RECEIVABLES> 102,401
<ALLOWANCES> 0
<INVENTORY> 21,505
<CURRENT-ASSETS> 201,159
<PP&E> 258,967
<DEPRECIATION> (106,078)
<TOTAL-ASSETS> 545,177
<CURRENT-LIABILITIES> 155,560
<BONDS> 130,374
0
0
<COMMON> 2,584
<OTHER-SE> 158,495
<TOTAL-LIABILITY-AND-EQUITY> 545,177
<SALES> 0
<TOTAL-REVENUES> 243,194
<CGS> 0
<TOTAL-COSTS> 249,996
<OTHER-EXPENSES> (8,632)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 12,460
<INCOME-PRETAX> (10,630)
<INCOME-TAX> (6,181)
<INCOME-CONTINUING> (16,811)
<DISCONTINUED> (6,449)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (23,260)
<EPS-PRIMARY> (0.93)
<EPS-DILUTED> (0.92)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<EXCHANGE-RATE> 1
<CASH> 43,191
<SECURITIES> 12,480
<RECEIVABLES> 83,080
<ALLOWANCES> 0
<INVENTORY> 34,049
<CURRENT-ASSETS> 176,291
<PP&E> 233,580
<DEPRECIATION> (78,879)
<TOTAL-ASSETS> 569,359
<CURRENT-LIABILITIES> 125,006
<BONDS> 152,453
0
0
<COMMON> 2,520
<OTHER-SE> 175,537
<TOTAL-LIABILITY-AND-EQUITY> 569,359
<SALES> 0
<TOTAL-REVENUES> 240,018
<CGS> 0
<TOTAL-COSTS> 205,150
<OTHER-EXPENSES> (15,115)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,961
<INCOME-PRETAX> 52,302
<INCOME-TAX> 20,167
<INCOME-CONTINUING> 21,855
<DISCONTINUED> (49)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 21,806
<EPS-PRIMARY> 0.880
<EPS-DILUTED> 0.850
</TABLE>
