SHAREHOLDER SERVICING AGREEMENT
SHAREHOLDER SERVICING AGREEMENT (the "Agreement"), dated as of
October 20, 2003, between Pioneer Investment Management, Inc. ("Pioneer
Investment Management") and UBS Securities LLC ("UBS Securities").
WHEREAS, Pioneer Municipal High Income Advantage Trust (the
"Trust") is a closed-end, diversified management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), and its
shares of beneficial interest are registered under the Securities Act of 1933,
as amended; and
WHEREAS, Pioneer Investment Management is the investment
adviser of the Trust; and
WHEREAS, Pioneer Investment Management desires to retain UBS
Securities to provide shareholder servicing and market information with respect
to the Trust, and UBS Securities is willing to render such services;
NOW, THEREFORE, in consideration of the mutual terms and
conditions set forth below, the parties hereto agree as follows:
1. Pioneer Investment Management hereby employs UBS Securities, for the period
and on the terms and conditions set forth herein, to provide the following
services (the "Services"):
(a) Undertake to make available public information pertaining to the Trust on an
ongoing basis and to communicate to investors and prospective investors the
Trust's features and benefits (including periodic seminars or conference calls,
responses to questions from current or prospective shareholders and specific
shareholder contact where appropriate);
(b) Make available to investors and prospective investors market price, net
asset value, yield and other information regarding the Trust, if reasonably
obtainable, for the purpose of maintaining the visibility of the Trust in the
investor community;
(c) At the request of Pioneer Investment Management or the Trust, provide
certain economic research and statistical information and reports, if reasonably
obtainable, on behalf of Pioneer Investment Management or the Trust and consult
with representatives of Pioneer Investment Management and/or Trustees of the
Trust in connection therewith, which information and reports shall include: (i)
statistical and financial market information with respect to the Trust's market
performance; and (ii) comparative information regarding the Trust and other
closed-end management investment companies with respect to (x) the net asset
value of their respective shares, (y) the respective market performance of the
Trust and such other companies and (z) other relevant performance indicators;
provided that, except as legally required or as Pioneer Investment Management or
the Trust shall reasonably determine to be appropriate to explain to regulatory
authorities or courts any action taken by the Trust or its Board of Trustees,
such information and reports may not be quoted or referred to, orally or in
writing, reproduced or disseminated by the Trust or any of its affiliates or any
of their agents, without the prior written consent of UBS Securities; and
(d) At the request of Pioneer Investment Management or the Trust, provide
information to and consult with Pioneer Investment Management and/or the Board
of Trustees of the Trust with respect to applicable strategies designed to
address market value discounts, which may include share repurchases, tender
offers, modifications to dividend policies or capital structure, repositioning
or restructuring of the Trust, conversion of the Trust to an open-end investment
company, liquidation or merger; including providing information concerning the
use and impact of the above strategic alternatives by other market participants;
provided that, except as legally required or as Pioneer Investment Management or
the Trust shall reasonably determine to be appropriate to explain to regulatory
authorities or courts any action taken by the Trust or its Board of Trustees,
such information and any recommendations may not be quoted or referred to,
orally or in writing, reproduced or disseminated by the Trust or any of its
affiliates or any of their agents, without the prior written consent of UBS
Securities.
(e) At the request of Pioneer Investment Management or the Trust, UBS Securities
shall limit or cease any action or service provided hereunder to the extent and
for the time period requested by Pioneer Investment Management or the Trust;
provided, however, that pending termination of this Agreement as provided for in
Section 5 hereof, any such limitation or cessation shall not relieve Pioneer
Investment Management of its payment obligations pursuant to Section 2 hereof.
(f) UBS Securities will promptly notify Pioneer Investment Management or the
Trust, as the case may be, if it learns of any material inaccuracy or
misstatement in, or material omission from, any written information provided by
UBS Securities to Pioneer Investment Management or the Trust in connection with
the performance of services by UBS Securities under this Agreement. UBS
Securities acknowledges that in performing the Services under this Agreement, it
will comply in all material respects with all applicable laws, rules and
regulations.
2. Pioneer Investment Management will pay UBS Securities a fee computed weekly
and payable quarterly at an annualized rate of 0.10% of the aggregate average
daily managed assets of the Trust. Fees payable hereunder shall be subject to
the sales charge limits of the National Association of Securities Dealers, Inc.
and shall not exceed 2.20% of the aggregate offering price in the initial public
offering (the "Offering") of the common shares of the Trust (the "Maximum Fee
Amount").
3. Pioneer Investment Management acknowledges that the shareholder services of
UBS Securities provided for hereunder do not include any advice as to the value
of securities or regarding the advisability of purchasing or selling any
securities for the Trust's portfolio. No provision of this Agreement shall be
considered as creating, nor shall any provision create, any obligation on the
part of UBS Securities, and UBS Securities is not hereby agreeing, to: (i)
furnish any advice or make any recommendations regarding the purchase or sale of
portfolio securities or (ii) render any opinions, valuations or recommendations
of any kind or to perform any such similar services in connection with providing
the services described in Section 1 hereof.
4. Nothing herein shall be construed as prohibiting UBS Securities or its
affiliates from providing similar or other services to any other clients
(including other registered investment companies or other investment managers),
so long as UBS Securities' services to Pioneer Investment Management and the
Trust are not impaired thereby. Neither this Agreement nor the performance of
the Services hereunder shall be considered to constitute a partnership,
association or joint venture between UBS Securities and Pioneer Investment
Management. In addition, nothing herein shall be construed to constitute UBS
Securities as the agent or employee of Pioneer Investment Management or Pioneer
Investment Management as the agent or employee of UBS Securities, and neither
party shall make any representation to the contrary.
5. This Agreement shall continue coterminously with and so long as the
Investment Advisory Agreement, dated October 15, 2003, remains in effect between
the Trust and Pioneer Investment Management, or any similar investment advisory
agreement with a successor in interest or affiliate of Pioneer Investment
Management remains in effect, as, and to the extent, that such investment
advisory agreement is renewed periodically in accordance with the 1940 Act;
PROVIDED, HOWEVER, (i) that in the event that the contractual advisory fee rate
payable by the Trust to Pioneer Investment Management or such successor or
affiliate under the Investment Advisory Agreement is reduced below 0.60%, the
fee payable by Pioneer Investment Management to UBS Securities pursuant to
Section 2 of this agreement shall be reduced in proportion to, and for the
period of, such reduction of the advisory fee, and this agreement shall be
deemed to be amended automatically to reflect the same, and (ii) that this
Agreement shall automatically terminate if further payments to UBS Securities
would cause the total amount of underwriting compensation in connection with the
Offering to exceed the Maximum Fee Amount. This Agreement may not be assigned,
except by operation of law or in connection with the sale of all or
substantially all of the assets or of the equity securities of one of the
parties hereto, without the other party's prior consent.
6. Pioneer Investment Management will furnish UBS Securities with such
information regarding Pioneer and the Trust as UBS Securities believes
appropriate to its assignment hereunder (all such information so furnished being
the "Information"). Pioneer Investment Management recognizes and confirms that
UBS Securities (a) will use and rely primarily on the Information and on
information available from generally recognized public sources in performing the
services contemplated by this Agreement without having independently verified
the same and (b) does not assume responsibility for the accuracy or completeness
of the Information and such other information. The Information to be furnished
by Pioneer Investment Management when delivered, will be true and correct in all
material respects and will not contain any material misstatement of fact or omit
to state any material fact necessary to make the statements contained therein
not misleading. Pioneer Investment Management will promptly notify UBS
Securities if it learns of any material inaccuracy or misstatement in, or
material omission from, any Information delivered to UBS Securities. UBS
Securities acknowledges that certain of the Information provided by Pioneer
Investment Management may be proprietary to Pioneer Investment Management and
hereby agrees that it will not disclose (other than as may be required by
applicable law or regulatory proceeding, or with the prior written consent of
Pioneer Investment Management) to any third party any Information provided to
UBS Securities by Pioneer Investment Management and specifically identified in
writing by Pioneer Investment Management, prior to or at the time of its
delivery, as confidential or proprietary.
7. It is understood that UBS Securities is being engaged hereunder solely to
provide the services described above to Pioneer Investment Management and to the
Trust and that UBS Securities is not acting as an agent or fiduciary of, and
shall have no duties or liability to the current or future shareholders of the
Trust, the current or future shareholders of the Trust or any other third party
in connection with its engagement hereunder, all of which are hereby expressly
waived.
8. Pioneer Investment Management agrees that UBS Securities shall have no
liability to Pioneer Investment Management or the Trust for any act or omission
to act by UBS Securities in the course of its performance under this Agreement,
in the absence of gross negligence or willful misconduct on the part of UBS
Securities. Pioneer Investment Management agrees to the indemnification and
other agreements set forth in the Indemnification Agreement attached hereto, the
provisions of which are incorporated herein by reference and shall survive the
termination, expiration or supersession of this Agreement.
9. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY THEREIN AND WITHOUT REGARD TO
THE CHOICE OF LAW PRINCIPLES THEREOF.
10. EACH OF THE PIONEER INVESTMENT MANAGEMENT AND UBS SECURITIES AGREE THAT ANY
ACTION OR PROCEEDING BASED HEREON, OR ARISING OUT OF UBS SECURITIES' ENGAGEMENT
HEREUNDER, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN XXX XXXXXX XX XXX
XXXXX XX XXX XXXX LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. PIONEER INVESTMENT
MANAGEMENT AND UBS SECURITIES EACH HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW
YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK FOR THE PURPOSE OF ANY SUCH ACTION OR PROCEEDING AS SET FORTH ABOVE AND
IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH ACTION OR PROCEEDING. EACH OF PIONEER INVESTMENT MANAGEMENT AND UBS
SECURITIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
11. Pioneer Investment Management and UBS Securities each hereby irrevocably
waive any right they may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or the transactions contemplated hereby.
This Agreement may not be assigned by either party without the prior written
consent of the other party.
12. This Agreement (including the attached Indemnification Agreement) embodies
the entire agreement and understanding between the parties hereto and supersedes
all prior agreements and understandings relating to the subject matter hereof.
If any provision of this Agreement is determined to be invalid or unenforceable
in any respect, such determination will not affect such provision in any other
respect or any other provision of this Agreement, which will remain in full
force and effect. This Agreement may not be amended or otherwise modified or
waived except by an instrument in writing signed by both UBS Securities and
Pioneer Investment Management.
13. All notices required or permitted to be sent under this Agreement shall be
sent, if to Pioneer Investment Management:
Pioneer Investment Management, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Legal Officer
or if to UBS Securities:
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Legal Officer
or such other name or address as may be given in writing to the other parties.
Any notice shall be deemed to be given or received on the third day after
deposit in the U.S. mail with certified postage prepaid or when actually
received, whether by hand, express delivery service or facsimile transmission,
whichever is earlier.
14. This Agreement may be exercised on separate counterparts, each of which is
deemed to be an original and all of which taken together constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Shareholder Servicing Agreement as of the date first above written.
PIONEER INVESTMENT MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
UBS SECURITIES LLC
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Managing Director
By: /s/ Xxxx X. Reit
Name: Xxxx X. Reit
Title: Executive Director
UBS SECURITIES LLC INDEMNIFICATION AGREEMENT
October 20, 2003
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
In connection with the engagement of UBS Securities LLC ("UBS
Securities") to provide the Services to the undersigned (together with its
affiliates and subsidiaries, referred to as the "Company") set forth in the
Shareholder Servicing Agreement dated October 20, 2003 between the Company and
UBS Securities (the "Agreement"), in the event that UBS Securities becomes
involved in any capacity in any claim, suit, action, proceeding, investigation
or inquiry (including, without limitation, any shareholder or derivative action
or arbitration proceeding) (collectively, a "Proceeding") in connection with any
matter in any way relating to or referred to in the Agreement or the Services to
be provided thereunder, the Company agrees to indemnify, defend and hold UBS
Securities harmless to the fullest extent permitted by law, from and against any
losses, claims, damages, liabilities and expenses in connection with any matter
in any way relating to or referred to in the Agreement or the Services to be
provided thereunder (a "Covered Claim"), except to the extent that it shall be
determined by a court of competent jurisdiction in a judgment that has become
final in that it is no longer subject to appeal or other review, that such
losses, claims, damages, liabilities and expenses resulted solely from the gross
negligence or willful misconduct of UBS Securities. In addition, in the event
that UBS Securities becomes involved in any capacity in any Proceeding which
relates to a Covered Claim, the Company will reimburse UBS Securities for its
legal and other expenses (including the reasonable cost of any investigation and
preparation) as such expenses are incurred by UBS Securities in connection
therewith. If such indemnification were not to be available for any reason, the
Company agrees to contribute to the losses, claims, damages, liabilities and
expenses involved (i) in the proportion appropriate to reflect the relative
benefits received or sought to be received by the Company and its stockholders,
on the one hand, and UBS Securities, on the other hand, in the matters
contemplated by the Agreement or (ii) if (but only if and to the extent) the
allocation provided for in clause (i) is for any reason held unenforceable, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and its
stockholders, on the one hand, and the party entitled to contribution, on the
other hand, as well as any other relevant equitable considerations. The Company
agrees that for the purposes of this paragraph the relative benefits received,
or sought to be received, by the Company and its stockholders, on the one hand,
and the party entitled to contribution, on the other hand, of a transaction as
contemplated shall be deemed to be in the same proportion that the total value
received or paid or contemplated to be received or paid by the Company or its
stockholders or affiliates and other constituencies, as the case may be, as a
result of or in connection with the transaction (whether or not consummated) for
which UBS Securities has been retained to perform financial services bears to
the fees paid to UBS Securities under the Agreement; PROVIDED, that in no event
shall the Company contribute less than the amount necessary to assure that UBS
Securities is not liable for losses, claims, damages, liabilities and expenses
in excess of the amount of fees actually received by UBS Securities pursuant to
the Agreement. Relative fault shall be determined by reference to, among other
things, whether any alleged untrue statement or omission or any other alleged
conduct relates to information provided by the Company or other conduct by the
Company (or its employees or other agents), on the one hand, or by UBS
Securities, on the other hand. The Company will not settle any Proceeding in
respect of which indemnity may be sought hereunder, whether or not UBS
Securities is an actual or potential party to such Proceeding, without UBS
Securities' prior written consent. For purposes of this Indemnification
Agreement, UBS Securities shall include UBS Securities LLC, any of its
affiliates, each other person, if any, controlling UBS Securities or any of its
affiliates, their respective officers current and former directors, employees
and agents, and the successors and assigns of all of the foregoing persons. The
foregoing indemnity and contribution agreement shall be in addition to any
rights that any indemnified party may have at common law or otherwise.
If any Proceeding is brought against UBS Securities in respect of which
indemnity may be sought against the Company pursuant to the foregoing paragraph,
UBS Securities shall promptly notify the Company in writing of the institution
of such Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to UBS Securities
and payment of all fees and expenses; provided, however, that the omission to so
notify the Company shall not relieve the Company from any liability which the
Company may have to UBS Securities or otherwise, unless and only to the extent
that, such omission results in the forfeiture of substantive rights or defenses
by the Company. UBS Securities shall have the right to employ its own counsel in
any such case, but the fees and expenses of such counsel shall be at the expense
of UBS Securities unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense of such
Proceeding or the Company shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the defense of
such Proceeding or UBS Securities shall have reasonably concluded that there may
be defenses available to it which are different from, additional to or in
conflict with those available to the Company (in which case the Company shall
not have the right to direct the defense of such Proceeding on behalf of UBS
Securities), in any of which events such fees and expenses shall be borne by the
Company and paid as incurred (it being understood, however, that the Company
shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction). The Company shall not be liable for any
settlement of any Proceeding effected without its written consent but if settled
with the written consent of the Company, the Company agrees to indemnify and
hold harmless UBS Securities from and against any loss or liability by reason of
such settlement. Notwithstanding the foregoing sentence, if at any time UBS
Securities shall have requested the Company to reimburse UBS Securities for fees
and expenses of counsel as contemplated by the second sentence of this
paragraph, then the Company agrees that it shall be liable for any settlement of
any Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by the Company of the
aforesaid request, (ii) the Company shall not have reimbursed UBS Securities in
accordance with such request prior to the date of such settlement and (iii) UBS
Securities shall have given the Company at least 30 days' prior notice of its
intention to settle. The Company shall not, without its prior written consent,
effect any settlement of any pending or threatened Proceeding in respect of
which UBS Securities is or could have been a party and indemnity could have been
sought hereunder by UBS Securities, unless such settlement includes an
unconditional release of UBS Securities from all liability on claims that are
the subject matter of such Proceeding and does not include an admission of
fault, culpability or a failure to act, by or on behalf of UBS Securities.
The Company agrees that neither UBS Securities nor any of its
affiliates, directors, agents, employees or controlling persons shall have any
liability to the Company or any person asserting claims on behalf of or in right
of the Company in connection with or as a result of a Covered Claim, except to
the extent that it shall be determined by a court of competent jurisdiction in a
judgment that has become final in that it is no longer subject to appeal or
other review that any losses, claims, damages, liabilities or expenses incurred
by the Company resulted solely from the gross negligence or willful misconduct
of UBS Securities in performing the services that are the subject of the
Agreement.
THIS INDEMNIFICATION AGREEMENT AND ANY CLAIM, COUNTERCLAIM OR DISPUTE
OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATING TO THIS
AGREEMENT ("CLAIM"), DIRECTLY OR INDIRECTLY, SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS SET FORTH BELOW,
NO CLAIM MAY BE COMMENCED, PROSECUTED OR CONTINUED IN ANY COURT OTHER THAN THE
COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WHICH
COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER THE ADJUDICATION OF SUCH MATTERS,
AND THE COMPANY AND UBS SECURITIES CONSENT TO THE JURISDICTION OF SUCH COURTS
AND PERSONAL SERVICE WITH RESPECT THERETO. THE COMPANY HEREBY CONSENTS TO
PERSONAL JURISDICTION, SERVICE AND VENUE IN ANY COURT IN WHICH ANY CLAIM ARISING
OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT IS BROUGHT BY AND THIRD PARTY
AGAINST UBS SECURITIES OR ANY INDEMNIFIED PARTY. EACH OF UBS SECURITIES AND THE
COMPANY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING OR CLAIM (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR IN ANY WAY RELATING TO
THIS AGREEMENT. THE COMPANY AGREES THAT A FINAL JUDGMENT IN ANY PROCEEDING OR
CLAIM ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT BROUGHT IN ANY
SUCH COURT SHALL BE CONCLUSIVE AND BINDING UPON THE COMPANY AND MAY BE ENFORCED
IN ANY OTHER COURTS TO THE JURISDICTION OF WHICH THE COMPANY IS OR MAY BE
SUBJECT, BY SUIT UPON SUCH JUDGMENT.
The foregoing Indemnification Agreement shall remain in full force and
effect notwithstanding any termination of UBS Securities' engagement. This
Indemnification Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same agreement.
Very truly yours,
PIONEER INVESTMENT MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
Accepted and agreed to as of the date first above written:
UBS SECURITIES LLC
By /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Managing Director
By /s/ Xxxx X. Reit
Name: Xxxx X. Reit
Title: Executive Director
