GUARANTEE
GUARANTEE dated as of October 29, 2002 by Bank of America Corporation
(the "GUARANTOR"), in favor of Pioneer Protected Principal Plus Fund (the
"GUARANTEED PARTY"), a series of Pioneer Principal Protection Fund (the
"TRUST").
To induce the Trust on behalf of the Guaranteed Party to enter into the
Financial Warranty Agreement, dated as of October 29, 2002, among the Trust on
behalf of the Guaranteed Party, as Fund, Pioneer Investment Management, Inc., as
Adviser and Main Place Funding, LLC, as Warranty Provider ("MPF") (the
"FINANCIAL WARRANTY AGREEMENT") and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Guarantor hereby irrevocably
and unconditionally guarantees to the Guaranteed Party, with effect from the
date of issuance of the financial warranty under the Financial Warranty
Agreement, all present and future obligations of MPF to the Guaranteed Party
arising out of the Financial Warranty Agreement; PROVIDED, that the Guarantor
does not guarantee hereunder any obligations of MPF arising out of other
transactions not governed by the Financial Warranty Agreement. Upon failure of
MPF punctually to fulfill any such obligation, and upon written demand by the
Guaranteed Party to the Guarantor, the Guarantor agrees to fulfill, or cause to
be fulfilled, to the extent such obligation is not performed, the performance of
such obligation; PROVIDED, that delay by the Guaranteed Party in giving such
demand shall in no event affect the Guarantor's obligations under this
Guarantee; PROVIDED FURTHER, that any single or partial exercise by the
Guaranteed Party of any right, remedy or power hereunder shall not preclude any
other or future exercise of any right, remedy or power. Each and every right,
remedy and power hereby granted to the Guaranteed Party or allowed it by law or
by another agreement shall be cumulative and not exclusive of any other, and may
be exercised by the Guaranteed Party at any time or from time to time.
The Guarantor hereby agrees that its obligations hereunder shall be
continuing and unconditional and will not be discharged except by full and
complete satisfaction of all present and future obligations of MPF to the
Guaranteed Party arising out of the Financial Warranty Agreement, irrespective
of any claim as to the validity, regularity or enforceability of the Financial
Warranty Agreement, or the lack of authority of MPF to execute the Financial
Warranty Agreement; or any change in or amendment to the Financial Warranty
Agreement; or any waiver or consent by the Guaranteed Party with respect to any
provisions thereof; or the absence of any action to enforce the terms of the
Financial Warranty Agreement, or the recovery of any judgment against MPF or of
any action to enforce a judgment against MPF under the terms of the Financial
Warranty Agreement or any other circumstance relating to the Guarantor's
obligations hereunder that might otherwise constitute a legal or equitable
discharge or defense of this Guarantee.
The Guarantor hereby waives diligence, presentment, demand on MPF for
delivery or otherwise, filing of claims, requirement of a prior proceeding
against MPF and protest or notice. This Guarantee is a guarantee of performance
and not of collection. If at any time any delivery or payment by MPF under the
Financial Warranty Agreement is rescinded or must be otherwise restored or
returned by the Guaranteed Party upon the insolvency, bankruptcy or
reorganization of MPF or the Guarantor or otherwise, the Guarantor's obligations
hereunder with respect to such delivery or payment shall be reinstated upon such
restoration or return being made by the Guaranteed Party.
The Guarantor agrees to pay on demand all fees and out of pocket
expenses (including the reasonable fees and expenses of any Guaranteed Party's
counsel) in any way relating to the enforcement or protection of the rights of
the Guaranteed Party hereunder; provided, that the Guarantor shall not be liable
for any expenses of the Guaranteed Party if no delivery or payment under this
Guarantee is due. The Guarantor reserves the right to assert defenses that MPF
may have to any delivery or payment to the Guaranteed Party under the Financial
Warranty Agreement other than defenses arising from the bankruptcy or insolvency
of MPF and other defenses expressly waived hereby.
The Guarantor represents to the Guaranteed Party as of the date hereof
that:
1. It is duly organized and validly existing under the laws of the
jurisdiction of its incorporation and has full power and legal right to execute
and deliver this Guarantee and to perform the provisions of this Guarantee on
its part to be performed.
2. Its execution, delivery and performance of this Guarantee have been
and remain duly authorized by all necessary corporate action and do not
contravene any provision of its certificate of incorporation or by-laws, as
amended, or any law, regulation or contractual restriction binding on it or its
assets.
3 All consents, licenses, authorizations, approvals and clearances
(including, without limitation, any necessary exchange control approval) and
notifications, reports and registrations requisite for its due execution,
delivery and performance of this Guarantee have been obtained from or, as the
case may be, filed with the relevant governmental authorities having
jurisdiction and remain in full force and effect and all conditions thereof have
been duly complied with and no other action by, and no notice to or filing with,
any governmental authority having jurisdiction is required for such execution,
delivery or performance.
4. This Guarantee is its legal, valid and binding obligation
enforceable against it in accordance with its terms, except as enforcement
hereof may be
limited by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights or by general equity
principles.
By accepting this Guarantee, the Guaranteed Party agrees that the
Guarantor shall be subrogated to all rights of the Guaranteed Party against MPF
in respect of any delivery or payment made by the Guarantor pursuant to this
Guarantee; provided, however, that the Guarantor shall not exercise or be
entitled to receive any payments arising out of, or based upon such right of
subrogation until all obligations under the Financial Warranty Agreement shall
have been paid in full to the Guaranteed Party.
Neither the Guarantor nor the Guaranteed Party may assign its rights,
interests or obligations hereunder to any other person (except by operation of
law) without the prior written consent of the Guarantor or the Guaranteed Party,
as the case may be.
All notices or demands on the Guarantor shall be deemed effective when
received, shall be in writing and shall be delivered by hand or by registered
mail, or by facsimile transmission promptly confirmed by registered mail,
addressed to the Guarantor at:
Bank of America Corporation
c/o Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
or to such other address or facsimile number as the Guarantor shall have
notified the Guaranteed Party in a written notice delivered to the Guaranteed
Party in accordance with the Financial Warranty Agreement.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York. All capitalized terms not otherwise defined
herein shall have the respective meanings assigned to them in the Financial
Warranty Agreement.
BANK OF AMERICA CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
