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EXHIBIT - 10.1
THE PIONEER GROUP, INC.
CREDIT AGREEMENT
AMENDMENT NO. 5
This Agreement, dated as of July 21, 1998, 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 July 21, 1998 or this Agreement
shall be of no force or effect:
1. ADDITION OF SECTION 1.1A. A new Section 1.1A is added to the Credit
Agreement immediately after Section 1.1 of the Credit Agreement to read in its
entirety as follows:
"1.1A "ADJUSTED COMPANY TOTAL DEBT" means, at any date, Company Total Debt
PLUS the B Share Loan."
2. AMENDMENT OF SECTION 1.4. Section 1.4 of the Credit Agreement is amended
to read in its entirety as follows:
"1.4. "APPLICABLE MARGIN" means, with respect to any portion of the
Revolving Loan or B Share Revolving Loan subject to a Pricing Option,
(1) on or after the date of this Amendment No. 5 but prior to the first
anniversary of the date of this Amendment No. 5:
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(a) on any date that Adjusted Company Total Debt is less than or equal
to 200% of Combined Adjusted Mutual Fund Cash Flow, 1.25%;
(b) on any date that Adjusted Company Total Debt is greater than 200%
but less than or equal to 250% of Combined Adjusted Mutual Fund Cash Flow,
1.50%; and
(c) on any date that Adjusted Company Total Debt is greater than 250%
of Combined Adjusted Mutual Fund Cash Flow, 1.75%; and
(2) on and after the first anniversary of the date of this Amendment No. 5:
(a) on any date that Adjusted Company Total Debt is less than or equal
to 100% of Combined Adjusted Mutual Fund Cash Flow, 1.125%;
(b) on any date that Adjusted Company Total Debt is greater than 100%
but less than or equal to 200% of Combined Adjusted Mutual Fund Cash Flow,
1.25%;
(c) on any date that Adjusted Company Total Debt is greater than 200%
but less than or equal to 250% of Combined Adjusted Mutual Fund Cash Flow,
1.50%; and
(d) on any date that Adjusted Company Total Debt is greater than 250%
of Combined Adjusted Mutual Fund Cash Flow, 1.75%.
For purposes of calculating the Applicable Margin, (1) Adjusted
Company Total Debt shall be determined as of the last day of the most
recently ended fiscal quarter for which financial statements have been
furnished (or are required to have been furnished) by the Company to the
Agent pursuant to Sections 7.4.1 or 7.4.2 and (2) Combined Adjusted Mutual
Fund Cash Flow shall be determined for the period of four consecutive
fiscal quarters of the Company then ended. Any adjustment in the Applicable
Margin shall take effect upon the earlier of (i) the date upon which the
financial statements referred to in the foregoing sentence are furnished or
(ii) the date such financial statements are required to be furnished by the
Company to the Agent. If for any reason the Company shall not have
furnished the financial statements required by Sections 7.4.1 or 7.4.2 upon
the expiration of the period specified in Section 9.1.2, then the
Applicable Margin shall be deemed to be the highest margin specified by
this Section 1.4."
3. AMENDMENT TO SECTION 1.5. Section 1.5 of the Credit Agreement is amended
to read in its entirety as follows:
"1.5. "APPLICABLE RATE" means, at any date,
(1) with respect to any Loan
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(a) for each portion of any Loan subject to a Pricing Option, the
sum of the Eurodollar Rate with respect to such Pricing Option
PLUS the Applicable Margin; and
(b) for each other portion of any Loan, the Base Rate;
PLUS (2) in each case, an additional 2% effective on the day the Agent
notifies (which notice the Agent shall be required to give upon the
written request of the Required Lenders) the Company that the interest
rates hereunder are increasing as a result of the occurrence of an
Event of Default until the earlier of such time as (i) such Event of
Default is no longer continuing or (ii) such Event of Default is
deemed no longer to exist, in each case pursuant to Section 9.3."
4. ADDITION OF SECTION 1.37A. A new Section 1.37A is added to the Credit
Agreement immediately after Section 1.37 of the Credit Agreement to read in its
entirety as follows:
"1.37A "COMBINED ADJUSTED MUTUAL FUND CASH FLOW" means, for any period,
Combined Mutual Fund Cash Flow PLUS Distribution Fees."
5. ADDITION OF SECTION 7.19. A new Section 7.19 is added to the Credit
Agreement immediately after Section 7.18 of the Credit Agreement to read in its
entirety as follows:
"7.19. YEAR 2000. The material hardware and software systems of the Company
and its Subsidiaries include design, performance and functionality so that
the Company and its Subsidiaries do not reasonably expect to experience
invalid or incorrect results or abnormal hardware or software operation
related to calendar year 2000, except such results or abnormal operation
that would not cause a Material Adverse Change to the Company or its
Subsidiaries. To the best of the Company's knowledge after due diligence
and inquiry, the material hardware and software systems of the Company and
its Subsidiaries include, or will include prior to year 2000, calendar year
2000 date conversion and compatibility capabilities, including, but not
limited to, date data century recognition, same century and multiple
century formula and date value calculations, and user interface date data
values that reflect the century."
6. ADDITION OF SECTION 7.20. A new Section 7.20 is added to the Credit
Agreement immediately after Section 7.19 of the Credit Agreement to read in its
entirety as follows:
"7.20. UPSTREAM PAYMENTS. As indicated on page thirty-three of the Pioneer
Bank Syndicate Presentation dated June 30, 1998, the Company will cause the
following to occur by December 31, 1998: (a) Pioneer Capital Corporation
will pay $10 million to the Company and (b) Pioneer Funds Distributor, Inc.
will pay $8 million to the Company."
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7. AMENDMENT TO EXHIBIT 9.1.2 Exhibit 9.1.2 of the Credit Agreement is
amended to read in its entirety set forth on Exhibit 9.1.2 hereto.
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:
1. 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.
2. 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.
3. 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.
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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.
4. NO DEFAULT. Immediately before and after giving effect to the amendments
set forth in Section 2, no Default will exist.
5. 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:
1. PAYMENT OF FEES. The Company shall have paid all outstanding fees
related to the Credit Agreement.
2. 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 the Amendment
Date a certificate to these effects, in substantially the form of Exhibit 4(b),
signed by an Executive Officer or a Financial Officer.
3. LEGAL OPINION. On the Amendment Date, the Lenders shall have received
from Hale and Dorr LLP, 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.
4. 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.
5. EXECUTION BY LENDERS. Each of the Lenders shall have executed and
delivered this Agreement to the Company.
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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/ William H. Keogh By /s/ William H. Keogh
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Title: Treasurer Title: Treasurer
60 State Street 60 State Street
Boston, Massachusetts 02109-1820 Boston, Massachusetts 02109-1820
PIONEERING MANAGEMENT
CORPORATION
By /s/ William H. Keogh
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Title: Treasurer
60 State Street
Boston, Massachusetts 02109-1820
PIONEER MANAGEMENT (IRELAND) LTD.
By /s/ John F. Cogan, Jr.
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Title: Director
60 State Street
Boston, Massachusetts 02109-1820
PIONEER FUNDS DISTRIBUTOR, INC.
By /s/ William H. Keogh
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Title: Treasurer
60 State Street
Boston, Massachusetts 02109-1820
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BANKBOSTON, N.A.
By /s/ Karen A. Gallagher
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Title: Vice President
Financial Institutions Division
100 Federal Street - 15th Floor
Boston, Massachusetts 02110
Telecopy: (617) 434-1537
Telex: 940581
THE BANK OF NEW YORK
By /s/ Scott H. Buitekant
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Title: Assistant Vice President
One Wall Street, 17th Floor
Mutual Funds Banking Division
New York, NY 10286
Telecopy: (212) 635-6348
Telex:
SOCIETE GENERALE
By /s/ Woddy Littlefield
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Title: Vice President
1221 Avenue of the Americas
New York, New York 10020
Telecopy: (212) 278-7153
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STATE STREET BANK & TRUST COMPANY
By:/s/ Peter M. Sherwood
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Title: Vice President
225 Franklin Street, 8th Floor
Asset-Based Finance
Boston, MA 02110
Telecopy: (617) 338-4041
BANQUE NATIONALE DE PARIS
By:/s/ Frances Tenney /s/ Barry S. Feigenbaum
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Title: Vice President Senior Vice President
499 Park Avenue, 7th Floor
New York, 10022
Telecopy: (212) 415-9707
MELLON BANK, N.A.
By:/s/ Susan M. Whitewood
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Title: Vice President
One Mellon Bank Center
Mail Code: 1510370
Pittsburgh, PA 15258
Telecopy: (412) 234-8087
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EXHIBIT 4(b)
OFFICER'S CERTIFICATE
Pursuant to Section 4(b) of Amendment No. 5 to Credit Agreement dated as of
July 21, 1998 (the "Amendment") among The Pioneer Group, Inc., a Delaware
corporation (the "Company"), certain of its subsidiaries signatories thereto,
the Lenders and BankBoston, N.A., f/k/a The First National Bank of Boston, as
agent (the "Agent") for itself and the other Lenders, which amends the Credit
Agreement dated as of June 6, 1996 (as amended, modified and in effect prior to
giving effect to the Amendment, the "Credit Agreement"), among the Company,
certain of its subsidiaries signatories thereto, the Lenders and the Agent, the
Company hereby certifies that the representations and warranties contained in
Section 3 of the Amendment are true and correct on and as of the Amendment Date
with the same force and effect as though originally made on and as of the
Amendment Date; no Default exists on the Amendment Date or will exist
immediately after giving effect to the Amendment; and as of the Amendment Date,
no Material Adverse Change has occurred.
Terms defined in the Amendment and not otherwise defined herein are used
herein with the meanings so defined.
This certificate has been executed by a duly authorized Executive Officer
or Financial Officer this ____ day of July, 1998.
THE PIONEER GROUP, INC.
By /s/ William H. Keough
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Name: William H. Keough
Title: Treasurer
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EXHIBIT 9.1.2
OFFICERS OF THE COMPANY
1. John F. Cogan, Jr. Chairman of the Board, Chief Executive Officer and
President of the Company
2. William H. Keough Senior Vice President, Chief Financial Officer and
Treasurer of the Company and Subsidiaries
3. David D. Tripple President and Chief Investment Officer of Pioneering
Management Corporation
4. William H. Smith, Jr. President and Director of Pioneering Services
Corporation
5. Roger K. Leonard Managing Director and Chief Executive of Pioneer
Goldfields Limited and Managing Director of
Teberebie Goldfields Limited
6. Robert L. Butler President of Pioneer Funds Distributor, Inc.
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