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Exhibit 10.2
AMENDMENT NO. 2
TO
THE PIONEER GROUP, INC.
CREDIT AGREEMENT
2
THE PIONEER GROUP, INC.
CREDIT AGREEMENT
Amendment No. 2
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This Agreement, dated as of June 30, 1997, 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 June 30, 1997 or this Agreement
shall be of no force or effect:
a. AMENDMENT OF SECTION 1.44. Section 1.44 of the Credit Agreement is
amended to read in its entirety as follows:
"1.44. "COMPANY TOTAL DEBT" means, at any date, the following
indebtedness of the Company (excluding the B Share Loan):
(a) Indebtedness in respect of borrowed money;
(b) Indebtedness evidenced by notes, debentures or similar
instruments;
(c) Indebtedness in respect of Capitalized Leases;
(d) Indebtedness in respect of the deferred purchase price of
assets (other than normal trade accounts payable in the
ordinary course of business);
(e) Indebtedness in respect of mandatory redemption or dividend
rights on capital stock (or other equity);
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(f) Indebtedness in respect of unfunded pension liabilities.
(g) Indebtedness in respect of financial Guarantees (other than
the OPIC Guarantee to the extent such OPIC Guarantee is
financially insured under the Lloyds Policy) and letters of
credit; and
(h) Indebtedness calculated in accordance with GAAP in respect of
tax deficiencies asserted in a notice of deficiency from the
IRS issued pursuant to Section 6212 (or similar or successor
provisions) of the Code.
For purposes of this Section 1.44 only, the amount of any Guarantee
under this Section 1.44 and the amount of Indebtedness resulting from such
Guarantee shall be the stated or potential maximum amount for which the Company
is or may be directly or indirectly liable."
b. AMENDMENT TO SECTION 1.61. Section 1.61 of the Credit Agreement is
amended to read in its entirety as follows:
"1.61. "DISTRIBUTION FEES" means fees paid by the B Share Funds to the
Company or any other Subsidiary of the Company (minus any portion of
such fees remitted by the Company or any other Subsidiary (i) to a
Broker as concessions, trailing compensation or service fees, or (ii)
to Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx, Inc. pursuant to the Xxxxxxx
Xxxxx 401(k) Program) pursuant to a Distribution Plan."
c. ADDITION OF SECTION 1.95A. A new Section 1.95A is added to the
Credit Agreement immediately after Section 1.95 of the Credit Agreement to read
in its entirety as follows:
"1.95A. "LLOYDS POLICY" means the Lloyds London Syndicates insurance
policy, Policy Number 97BPL2066, issued to the Company with respect to
the OPIC Guarantee."
d. ADDITION OF SECTION 1.101A. A new Section 1.101A is added to the
Credit Agreement immediately after Section 1.101 of the Credit Agreement to read
in its entirety as follows:
"l.101A. "XXXXXXX XXXXX 401(k) PROGRAM" means the Xxxxxxx Xxxxx Small
Market 401(k) Program established and maintained by Xxxxxxx Xxxxx
Xxxxxx Xxxxxx & Xxxxx, Inc."
e. ADDITION OF SECTION 1.106A. A new Section 1.106A is added to the
Credit Agreement immediately after Section 1.106 of the Credit Agreement to
read in its entirety as follows:
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"l.106A. "OPIC GUARANTEE" means the guarantee of the Company in favor
of the Overseas Private Investment Corporation, in respect of certain
indebtedness of Teberebie Goldfields Limited, pursuant to that certain
letter agreement between the Company and the Overseas Private
Investment Corporation dated October 25, 1996."
f. AMENDMENT TO SECTION 7.16. Section 7.16 of the Credit Agreement is
amended to read in its entirety as follows:
"7.16. MAINTENANCE OF FEE STRUCTURE. With respect to the B Shares,
neither the Company nor any Subsidiary shall cause or permit dealer
commissions to be amended to be more favorable to the Brokers or
Redemption Fees to be amended to be more favorable to the shareholders
of the B Share Funds. The Company and each Subsidiary of the Company,
as the case may be, shall continue to receive Distribution Fees at
rates no less favorable than the minimum amounts set forth on Exhibit
7.16 and shall continue to act as sole distributor of each Fund and to
be the only Person to whom the Funds are permitted to make any payments
under the respective Distribution Plan or Distribution Agreement.
Exhibit 7. 16 may be amended from time to time by the Company upon 60
days prior notice to the Agent, and the Agent shall give prompt notice
thereof to the other Lenders, only to add to such Exhibit a Fund with
dealer reallowances no more favorable to the Brokers and Redemption
Fees and Distribution Fees no more favorable to the shareholders of
such Fund than those applicable to the Funds set forth on Exhibit 7.16
on the date hereof. Notwithstanding the foregoing, the waiver by the
Company of Redemption Fees with respect to B Shares sold pursuant to
the Xxxxxxx Xxxxx 401(k) Program shall be permitted."
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:
a. 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.
b. 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.
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c. 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.
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.
d. NO DEFAULT. Immediately before and after giving effect to the
amendments set forth in Section 2, no Default will exist.
e. 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:
a. 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
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the Amendment Date a certificate to these effects, in substantially the form of
Exhibit 4.1, signed by an Executive Officer or a Financial Officer.
b. LEGAL OPINION. On the Amendment Date, the Lenders shall have
received from Xxxx and Xxxx, 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.
c. 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.
d. 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.
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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/ Xxxxxxx X. Xxxxxx By /s/ Xxxxxxx X. Xxxxxx
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Title: Senior Vice President, Title: Treasurer
Chief Financial Officer,
and Treasurer
00 Xxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000 Xxxxxx, Xxxxxxxxxxxxx 00000-0000
PIONEERING MANAGEMENT CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
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Title: Treasurer
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
PIONEER MANAGEMENT (IRELAND) LTD.
By /s/ Xxxx X. Xxxxx, Xx.
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Title: Director
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
PIONEER FUNDS DISTRIBUTOR, INC.
By /s/ Xxxxxxx X. Xxxxxx
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Title: Treasurer
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
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BANKBOSTON, N.A.
By /s/ Xxxxxxx X. Xxxx
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Title: Managing Director
Financial Institutions Division
000 Xxxxxxx Xxxxxx-00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Telex: 940581
THE BANK OF NEW YORK
By /s/
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Title: Vice President
Xxx Xxxx Xxxxxx, XXX-0
Securities Industry Division
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Telex:
SOCIETE GENERALE
By /s/ X.X. Xxxxxxxxxxx
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Title: Vice President and Manager
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
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STATE STREET BANK & TRUST COMPANY
By /s/
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Title: Vice President
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Asset-Based Finance
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
BANQUE NATIONALE DE PARIS
By /s/ Xxxxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxxxxxx
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Title: Vice President Assistant Vice
President
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
MELLON BANK, N.A.
By /s/ Xxxxx X. Xxxxxxxxx
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Title: Assistant Vice President
One Mellon Bank Center
Mail Code: 1510370
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
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