INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of February 26, 2003,
among AMBAC ASSURANCE CORPORATION ("AMBAC"), Pioneer Investment Management, Inc.
(the "ADVISER"), Pioneer Protected Principal Trust (the "TRUST"), on behalf of
its series, Pioneer Protected Principal Plus Fund II (the "FUND") and Pioneer
Funds Distributor, Inc. (the "DISTRIBUTOR").
Section 1. DEFINITIONS. For purposes of this Agreement, the following terms
have the meanings provided below:
"AFFILIATE" means any Person that, through ownership of shares,
agreement or otherwise, controls, is controlled by or is under common control
with, another Person.
"AGREEMENT" means this Indemnification Agreement, as amended
from time to time.
"AMBAC INFORMATION" means the four paragraphs appearing in the
Prospectus under the heading "Ambac Assurance Corporation" and the financial
statements of the Insurer incorporated by reference in the Registration
Statement (which financial statements are contained in the periodic reports of
Ambac Financial Group Inc. filed under the Securities Exchange Act of 1934).
"AMBAC GROUP" means any of Ambac, its subsidiaries and
Affiliates, and any director, officer, employee or "controlling person," within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, of any of the foregoing.
"FINANCIAL GUARANTEE AGREEMENT" means the Financial Guarantee
Agreement, dated as of the date hereof, among Ambac, the Adviser and Trust on
behalf of the Fund, as it may be amended from time to time in accordance with
the terms thereof.
"INDEMNIFIED PARTY" means any party entitled to any
indemnification pursuant to SECTION 5 hereof.
"INDEMNIFYING PARTY" means any party required to provide
indemnification pursuant to SECTION 5 hereof.
"LOSSES" means (a) any actual out-of-pocket damages incurred by
the party entitled to indemnification or contribution hereunder, (b) any actual
out-of-pocket costs or expenses incurred by such party, including reasonable
fees or expenses of its counsel and other expenses incurred in connection with
investigating or defending any claim, action or other proceeding which entitle
such party to be indemnified hereunder (subject to the limitations set forth in
SECTION 4 hereof), to the extent not paid, satisfied or reimbursed from funds
provided by any other Person other than an Affiliate of such party (provided
that the foregoing shall not create or imply any obligation to pursue recourse
against any such other Person), plus (c) interest on the amount paid by the
party entitled to indemnification or contribution from the date of such payment
to the date of payment by the party who is obligated to indemnify or contribute
hereunder at the statutory rate applicable to judgments for breach of contract.
"REGISTRATION STATEMENT" means the Trust's registration
statement on Form N-1A with respect to each class of Shares of the Fund, as it
may be amended from time to time with respect to each class of Shares of the
Fund.
"RELEVANT PARTIES" means the Adviser, the Fund and the
Distributor.
"RELEVANT PARTY GROUP" means, with respect to the Relevant
Parties, the Relevant Parties, their respective parents, subsidiaries and
Affiliates and any director, officer, employee or "controlling person," within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, of the foregoing.
"SHARES" means the shares of beneficial interest of any class of
the Fund.
Section 2. REPRESENTATIONS AND WARRANTIES OF AMBAC. Ambac represents, warrants
and agrees that the Ambac Information included in the Registration Statement
does not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
Section 3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE RELEVANT PARTIES.
Each of the Relevant Parties represents, warrants and agrees, severally and not
jointly, as follows:
(a) Except for the Ambac Information (as to which such
Relevant Party does not make any representation or warranty), the information
contained in the Registration Statement and any amendment or supplement thereto
with respect to such Relevant Party or furnished by such Relevant Party does not
contain and will not contain any untrue statement of a material fact and does
not omit and will not omit to state therein a material fact necessary to make
the statements therein not materially misleading in light of the circumstances
in which they are made. All of the information in the Registration Statement,
other than the Ambac Information, shall be deemed to be with respect to, or
furnished by, one or more of the Relevant Parties, as determined by the Relevant
Parties INTER SE. Such Relevant Party has not violated in any material respect
and will not violate in any material respect any law, rule or regulation
applicable to it in connection with the issuance, offer and sale of Shares of
the Fund or or the execution and delivery of the Transaction.
(b) Such Relevant Party will not use, or distribute to any Person for use, or
permit the use of any Registration Statement (or any prospectus or statement of
additional information forming a part thereof) in connection with the offer and
sale of the Shares of the Fund unless such Registration Statement includes or
incorporates by reference such information as has been furnished by Ambac for
inclusion therein and the information therein or incorporated by reference
therein concerning Ambac has been approved by Ambac in writing.
Section 4. INDEMNIFICATION.
(a) Ambac agrees, upon the terms and subject to the conditions provided herein,
to indemnify, defend and hold harmless each Person in the Relevant Party Group
against any and all Losses resulting from Ambac's breach of any of its
representations, warranties or agreements set forth in SECTION 2 hereof.
(b) Each Relevant Party agrees, upon the terms and subject to the conditions
provided herein, to indemnify, defend and hold harmless each Person in the Ambac
Group against any and all Losses resulting from such Relevant Party's breach of
any of its representations, warranties or agreements set forth in SECTION 3
hereof.
(c) Upon the incurrence of any Losses for which a party is entitled to
indemnification hereunder, the Indemnifying Party shall reimburse the
Indemnified Party promptly upon establishment by the Indemnified Party to the
Indemnifying Party of the Losses incurred.
(d) The indemnity agreements contained in this SECTION 4 shall be in addition to
any liability which any Indemnifying Party may otherwise have to an Indemnified
Party.
Section 5. INDEMNIFICATION PROCEDURES. In the event that any action or
regulatory proceeding shall be commenced or claim asserted which may entitle an
Indemnified Party to be indemnified under this Agreement, such party shall give
the Indemnifying Party written or telegraphic notice of such action or claim
reasonably promptly after receipt of written notice thereof; PROVIDED, HOWEVER,
that the failure to notify the Indemnifying Party shall not relieve it from any
liability it may have to an Indemnified Party otherwise than under this SECTION
5. If any such action or claim shall be brought against an Indemnified Party,
and it shall notify the Indemnifying Party thereof, the Indemnifying Party, upon
the request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified Party and
shall pay the fees and disbursements of such counsel related to such proceeding.
The Indemnified Party will have the right to employ its own counsel in any such
action in addition to the counsel retained by the Indemnifying Party for the
benefit of the Indemnified Party, but the fees and expenses of such counsel will
be at the expense of such Indemnified Party, unless (a) the employment of
counsel by the Indemnified Party at the Indemnifying Party's expense has been
authorized in writing by the Indemnifying Party, (b) the Indemnifying Party has
not in fact employed counsel reasonably satisfactory to the Indemnified Party
within a reasonable time after receiving notice of the commencement of the
action, or (c) the named parties to any such action or proceeding (including any
impleaded parties) include both the Indemnifying Party and one or more
Indemnified Parties, and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them (it being understood, however, that the Indemnifying Party shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any time, in
addition to local counsel (if necessary), which firm shall be designated in
writing by the Adviser in respect of the Relevant Parties and by Ambac in
respect of Ambac), in each of which cases the fees and expenses of counsel will
be at the expense of the Indemnifying Party and all such fees and expenses will
be reimbursed promptly as they are incurred. The Indemnifying Party shall not be
liable for any settlement of any such claim or action unless the Indemnifying
Party shall have consented thereto or be in default in its obligations
hereunder. Any failure by an Indemnified Party to comply with the provisions of
this Section shall relieve the Indemnifying Party of liability only if such
failure is prejudicial to the position of the Indemnifying Party and then only
to the extent of such prejudice.
Section 6. CONTRIBUTION.
(a) To provide for just and equitable contribution if the indemnification
provided by an Indemnifying Party is determined to be unavailable or
insufficient to hold harmless any Indemnified Party in respect of any Losses
referred to in SECTION 4, such Indemnifying Party shall contribute to the amount
paid or payable by such Indemnified Party as a result of such Losses (i) in such
proportion as shall be appropriate to reflect the relative fault of the
Indemnifying Party, on the one hand, and the Indemnified Party, on the other
hand, with respect to the matter that resulted in such Losses or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative fault
referred to in clause (i) above but also the relative benefits received by each
of such parties from the offering of the Shares, as well as any other relevant
equitable considerations; PROVIDED, HOWEVER, that an Indemnifying Party shall in
no event be required to contribute to all Indemnified Parties an aggregate
amount in excess of the Losses incurred by such Indemnified Parties resulting
from the breach of representations, warranties or agreements contained in this
Agreement.
(b) The relative fault of each Indemnifying Party, on the one hand, and of each
Indemnified Party, on the other, shall be determined by reference to, among
other things, whether the breach of, or alleged breach of, any representations,
warranties or agreements contained in this Agreement relates to information
supplied by, or action within the control of, the Indemnifying Party or the
Indemnified Party and the parties' relative intent, knowledge access to
information and opportunity to correct or prevent such breach. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 6 were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable
considerations referred to herein.
(c) No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution hereunder
from any person who was not guilty of such fraudulent misrepresentation.
(d) Upon the incurrence of any Losses entitled to contribution hereunder, the
contributor shall reimburse the party entitled to contribution promptly upon
establishment by the party entitled to contribution to the contributor of the
Losses incurred.
Section 7. MISCELLANEOUS.
(a) NOTICES. All notices and other communications provided for under this
Agreement shall be delivered to the address set forth below or to such other
address as shall be designated by the recipient in a written notice to the other
party or parties hereto.
If to Ambac: Ambac Assurance Corporation
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Attention: Managing Director, Structured Finance
and Credit Derivatives
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Adviser: Pioneer Investment Management, Inc.
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Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Fund: Pioneer Protected Principal Plus Fund II
c/o Pioneer Investment Management, Inc.
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Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ and ▇▇▇▇ LLP
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Distributor: Pioneer Funds Distributor, Inc.
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Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) ASSIGNMENTS. This Agreement may not be assigned by any party without the
express written consent of each other party. Any assignment made in violation of
this Agreement shall be null and void.
(c) AMENDMENTS. Amendments to this Agreement shall be in writing signed by each
party hereto.
(d) SURVIVAL, ETC. The indemnity and contribution agreements contained in this
Agreement shall survive the termination of this Agreement. The
indemnification provided in this Agreement shall be in addition to any liability
which the parties may otherwise have and shall in no way limit any obligations
of the Adviser and the Fund to Ambac under the Financial Guarantee Agreement.
(e) HEADINGS. The headings in this Agreement are for purposes of reference only
and shall not limit or otherwise affect the meaning hereof.
(f) COUNTERPARTS. This Agreement may be executed in counterparts by the parties
hereto, and all such counterparts shall constitute one and the same instrument.
(g) CONSENT TO JURISDICTION; WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND ANY COURT IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY
OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT AGAINST IT AND TO OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREUNDER OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD OR
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN
SUCH FEDERAL COURT. THE PARTIES HERETO AGREE THAT A FINAL JUDGMENT IN ANY SUCH
ACTION, SUIT 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. TO
THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO HEREBY WAIVE AND
AGREE NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH
SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN
AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER OR THAT THE RELATED DOCUMENTS OR THE SUBJECT MATTER THEREOF MAY NOT BE
LITIGATED IN OR BY SUCH COURTS.
THE PARTIES HERETO 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 THE PARTIES HERETO
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.
(h) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (including Section 5-1401 of
the New York General Obligations Law but excluding all other choice of law and
conflicts of law rules).
(i) NO RIGHT OF SET OFF. None of the parties shall be entitled to exercise any
right of set off with respect to any amounts owing by such party under this
Agreement against any amounts owing to such party under any other agreement or
obligation
IN WITNESS WHEREOF, the parties hereto have caused this
Indemnification Agreement to be duly executed and delivered as of the date first
above written.
AMBAC ASSURANCE CORPORATION
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: First Vice President
PIONEER INVESTMENT MANAGEMENT, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
PIONEER PROTECTED PRINCIPAL TRUST, on behalf
of its series PIONEER PROTECTED PRINCIPAL
PLUS FUND II
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
PIONEER FUNDS DISTRIBUTOR, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President