EXECUTION COPY
SERVICE AGREEMENT
Agreement, dated October 29, 2002, among Pioneer Investment Management,
Inc. ("PIM"), Pioneer Protected Principal Plus Fund (the "Trust") on behalf
of its series, Pioneer Protected Principal Plus Fund (the "Fund"), Xxxxx
Brothers Xxxxxxxx & Co., Inc. (the "Custodian") and Main Place Funding, LLC (the
"WARRANTY PROVIDER").
Whereas, pursuant to a Custodian Agreement currently in full force and
effect between the Custodian and Pioneer Funds, dated as of July 1, 2001, as
supplemented as of September 3, 2002, to add the Trust on behalf of the Fund as
a party (the "Custodian Agreement"), the Custodian serves as custodian to the
Fund;
Whereas, PIM acts as investment adviser to the Fund;
Whereas, the Trust on behalf of the Fund, the Warranty Provider and PIM
are parties to a Financial Warranty Agreement, dated October 29, 2002 (the
"Financial Warranty Agreement"); and
Whereas, PIM, the Fund, the Warranty Provider and the Custodian wish to
clarify certain arrangements in connection with the Financial Warranty
Agreement.
Now therefore, PIM, the Fund, the Warranty Provider and the Custodian hereby
agree as follows:
1. During the Term (as defined below), the Custodian shall permit the
Warranty Provider and Banc of America Securities LLC (the "Calculation
Agent") to have continuous access to the Custodian's Information
Display System or any equivalent successor system (the "BID System")
solely for the purpose of monitoring the investment positions
maintained by the Fund. The Warranty Provider agrees to abide by such
conditions of use for such BID System as the Custodian shall reasonably
impose upon prior notice to the Warranty Provider of at least one
month.
2. During the Term, the Custodian shall provide to the Warranty Provider
and the Calculation Agent not later than 9:00 a.m. (Eastern time) on
each Exchange Business Day (as defined in the Financial Warranty
Agreement) electronically in a format acceptable to the Warranty
Provider (i) a copy of the records it maintains with respect to the
assets of the Fund as of the close of business on the prior Exchange
Business Day and (ii) a list of all of the Fund's trades during such
prior Exchange Business Day.
3. The Custodian agrees that if the Warranty Provider or the Calculation
Agent delivers irrevocable instructions in the form attached hereto as
Annex A which has been executed by PIM (the "Irrevocable
Instructions"), the Custodian shall (i) comply with such Irrevocable
Instructions promptly, but in any event, within two Exchange Business
Days (as defined in the Financial Warranty Agreement), and (ii) not
invest, dispose of or reinvest any of the Fund's assets except in
accordance with such Irrevocable Instructions. Each of PIM and the
Fund agrees that the delivery of such Irrevocable Instructions shall
constitute an "Instruction" from an "Authorized Person" (as those terms
are defined in the Custodian Agreement). Upon receipt of the
Irrevocable Instructions, the Custodian shall disregard any further
Instructions (other than Redemption Instructions (as defined in the
Irrevocable Instructions), provided that such Redemption Instructions
are made in accordance with the Irrevocable Instructions) that it may
receive from PIM (or any subadviser to the Fund), the Fund or any other
Authorized Person with respect to the investment of the Fund's
portfolio until notified otherwise in a writing signed by both the
Warranty Provider and PIM (the "Joint Instructions"). The Custodian
shall have no liability for any losses that may occur as a result of
its disregarding any Instructions or other directions (other than
Redemption Instructions, provided that such Redemption Instructions are
made in accordance with the Irrevocable Instructions) received from PIM
(or any subadviser of the Fund), the Fund or any other Authorized
Person after the Irrevocable Instructions have been delivered to the
Custodian by the Warranty Provider and prior to the time that the Joint
Instructions have been delivered to the Custodian. Upon receipt of the
Irrevocable Instructions, the Custodian shall promptly notify PIM of
the receipt of such Irrevocable Instructions.
4. This Agreement shall be effective from the date hereof until the
earlier of the termination of the Custodian Agreement (unless the
Custodian and the Fund enter into a successor custodian agreement
immediately after such termination) and the Termination Date (as
defined in the Financial Warranty Agreement) (the "Term").
5. If any provision(s) contained in the Custodian Agreement contradict(s)
any provision(s) contained in this Agreement, the provision(s) of this
Agreement shall control. Except as specifically provided herein, (i)
the Custodian shall have no express or implied duties of any kind with
respect to the subject matter herein and (ii) the Custodian shall have
no duty whatsoever to monitor the investment positions maintained by
the Fund. As between the Custodian and Fund, nothing contained herein
shall alter or amend the rights of the Custodian under the Custodian
Agreement.
6. Nothing in this Agreement shall limit the rights of the Board of
Trustees and duly appointed officers of the Fund to provide
Instructions to the Custodian with respect to the Fund under the
Custodian Agreement and prior to the delivery by the Warranty Provider
of the Irrevocable Instructions.
7. The parties hereby agree that the indemnification obligations set
forth below shall survive the termination of this Agreement:
(a) The extent of the Custodian's liability for the negligent
execution of an Irrevocable Instruction shall be determined in
accordance with the terms and conditions of the Custodian
Agreement. The Custodian's obligation to indemnify the Warranty
Provider for the negligent execution of an Irrevocable
Instruction shall be determined in accordance with the
Custodian's obligations and standard of care set forth in the
Custodian Agreement; PROVIDED, HOWEVER, that the Custodian shall
not be liable for any losses resulting directly or indirectly
from any action or omission on the part of the Warranty Provider
which constitutes negligence, recklessness, bad faith or willful
misconduct by the Warranty Provider.
(b) The Warranty Provider agrees to indemnify and hold harmless the
Custodian if the Irrevocable Instructions are negligently
delivered to the Custodian by the Warranty Provider (or the
Calculation Agent on its behalf) and the Custodian incurs losses
as a result of the Custodian complying in accordance with the
terms of this Agreement with such Irrevocable Instructions (or
any part thereof); PROVIDED, HOWEVER, that the Warranty Provider
shall not be liable for any losses resulting, directly or
indirectly, from any action or omission on the part of the
Custodian which constitutes negligence, recklessness, bad faith
or willful misconduct by the Custodian.
(c) The remedies provided for in this Section 7 shall not be
exclusive of any other rights or remedies available to one party
against the other, either at law or in equity.
8. Except to the extent otherwise expressly provided herein, all notices,
requests and demands to or upon the respective parties hereto to be
effective shall be in writing (and if, sent by mail, certified or
registered, return receipt requested) or confirmed facsimile
transmission and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand, or three
Business Days after being deposited in the mail, postage prepaid, or,
in the case of facsimile transmission, when sent, addressed as follows:
If to PIM:
Pioneer Investment Management, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Fund:
c/o Pioneer Investment Management, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Custodian:
Xxxxx Brothers Xxxxxxxx & Co., Inc.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Warranty Provider:
c/o Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx, Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address and/or addresses (and with copies to such
persons) as shall be specified in writing by any such party to the
others.
9. No failure on the part of any party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right.
The remedies herein provided are cumulative and not exclusive of any
remedies provided by law. The parties further agree that the holding
by any court of competent jurisdiction that any remedy pursued by any
party hereunder is unavailable or unenforceable shall not affect in any
way the ability of such party to pursue any other remedy available to
it. In the event any provision of this Agreement shall be held invalid
or unenforceable by any court of competent jurisdiction, the parties
hereto agree that such holding shall not invalidate or render
unenforceable any other provision hereof.
10. The parties hereto agree that irreparable damage would occur in the
event any provision of this Agreement was not performed in accordance
with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other
remedy at law or equity.
11. PIM, THE FUND, THE CUSTODIAN AND THE WARRANTY PROVIDER HEREBY
IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK
STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT AND PIM, THE FUND, THE CUSTODIAN AND THE WARRANTY
PROVIDER HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE
OR FEDERAL COURT. PIM, THE FUND, THE CUSTODIAN AND THE WARRANTY
PROVIDER HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THAT THEY MAY
LEGALLY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE
OF SUCH ACTION OR PROCEEDING. PIM, THE FUND, THE CUSTODIAN AND THE
WARRANTY PROVIDER AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED
BY LAW.
PIM, THE FUND, THE CUSTODIAN AND THE WARRANTY PROVIDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF THE PARTIES HERETO. EACH OF PIM, THE FUND, THE
CUSTODIAN AND THE WARRANTY PROVIDER ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR SUCH PARTIES ENTERING INTO
THIS AGREEMENT.
12. Nothing in this Agreement, express or implied, shall or is intended to
confer any rights upon any Person other than the parties hereto or
their respective successors or assigns, including, without limitation,
any shareholder of the Fund.
13. The parties hereto shall, upon the request of PIM, the Fund, the
Custodian or the Warranty Provider from time to time, execute,
acknowledge and deliver, or cause to be executed, acknowledged and
delivered, within a reasonable period following such request, such
amendments or supplements hereto and such further instruments and take
such further action as may be reasonably necessary to effectuate the
intention, performance and provisions of this Agreement and the other
Transaction Documents (as defined in the Financial Warranty Agreement).
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York (without regard to conflicts of laws
provisions thereof).
15. This Agreement may be executed in counterparts of the parties hereto,
and each such counterpart shall be considered an original and all such
counterparts shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
all as of the day and year first above mentioned.
PIONEER INVESTMENT MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Treasurer
PIONEER PROTECTED PRINCIPAL PLUS FUND on behalf of its
series, PIONEER PROTECTED PRINCIPAL PLUS FUND
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Treasurer
MAIN PLACE FUNDING, LLC
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: President
XXXXX BROTHERS XXXXXXXX & CO., INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Partner
