Exhibit 9b
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CREDIT AGREEMENT
DATED AS OF FEBRUARY 20, 1998
AMONG
THE FUNDS AND PORTFOLIOS PARTIES HERETO,
THE BANKS PARTY HERETO AS LENDERS
AND
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS AGENT
ARRANGED BY
BANCAMERICA XXXXXXXXX XXXXXXXX
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TABLE OF CONTENTS
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1. DEFINITIONS, INTERPRETATION OF AGREEMENT AND COMPLIANCE WITH FINANCIAL
RESTRICTIONS......................................................................................... 1
1.1 Definitions.................................................................................... 1
1.2 Other Definitional Provisions.................................................................. 9
1.3 Interpretation of Agreement.................................................................... 9
1.4 Compliance with Financial Restrictions......................................................... 10
1.5 Assumptions Regarding Structure................................................................ 10
1.6 Authority of Adviser; Adviser Disclaimer....................................................... 10
2. COMMITMENTS OF THE BANKS AND CERTAIN LOAN TERMS...................................................... 11
2.1 Loans.......................................................................................... 11
2.2 Loan Options................................................................................... 11
2.3 Borrowing Procedures........................................................................... 11
2.4 Continuation and/or Conversion of Loans........................................................ 12
2.5 Note Evidencing Loans.......................................................................... 13
2.6 Source of Repayment............................................................................ 13
2.7 Extension of Scheduled Termination Date........................................................ 13
3. INTEREST AND FEES.................................................................................... 14
3.1 Interest....................................................................................... 14
3.2 Commitment Fee................................................................................. 14
3.3 Method of Calculating Interest and Fees........................................................ 15
4. PAYMENTS, PREPAYMENTS, REDUCTION OR TERMINATION OF THE COMMITMENTS
AND SETOFF........................................................................................... 15
4.1 Place of Payment............................................................................... 15
4.2 Prepayments.................................................................................... 15
4.3 Reduction or Termination of the Commitment Amount.............................................. 16
4.4 Setoff......................................................................................... 16
4.5 Borrowing Base................................................................................. 16
4.6 Payments by the Banks to the Agent............................................................. 16
4.7 Sharing of Payments............................................................................ 17
5. ADDITIONAL PROVISIONS RELATING TO LOANS.............................................................. 18
5.1 Increased Cost................................................................................. 18
5.2 Deposits Unavailable or Interest Rate Unascertainable or Inadequate; Impracticability.......... 18
5.3 Changes in Law Rendering Eurodollar Loans Unlawful............................................. 19
5.4 Discretion of the Bank as to Manner of Funding................................................. 19
5.5 Funding Losses................................................................................. 20
5.6 Capital Adequacy............................................................................... 20
5.7 Additional Provisions with respect to Federal Funds Rate Loan.................................. 21
6. WARRANTIES........................................................................................... 21
6.1 Existence...................................................................................... 21
6.2 Authorization.................................................................................. 21
6.3 No Conflicts................................................................................... 22
6.4 Validity and Binding Effect.................................................................... 22
6.5 No Default..................................................................................... 22
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6.6 Financial Statements........................................................................... 22
6.7 Litigation..................................................................................... 22
6.8 Liens.......................................................................................... 23
6.9 Partnerships................................................................................... 23
6.10 Purpose........................................................................................ 23
6.11 Compliance..................................................................................... 23
6.12 Pension and Welfare Plans...................................................................... 23
6.13 Taxes.......................................................................................... 24
6.14 Subsidiaries; Investments...................................................................... 24
6.15 Full Disclosure................................................................................ 24
6.16 Investment Policies............................................................................ 24
7. COVENANTS............................................................................................ 24
7.1 Financial Statements and Other Reports......................................................... 24
7.2 Notices........................................................................................ 26
7.3 Existence...................................................................................... 27
7.4 Nature of Business............................................................................. 27
7.5 Books, Records and Access...................................................................... 27
7.6 Insurance...................................................................................... 27
7.7 Dividends...................................................................................... 28
7.8 Investment Policies and Restrictions........................................................... 28
7.9 Taxes.......................................................................................... 28
7.10 Compliance..................................................................................... 29
7.11 Pension Plans.................................................................................. 29
7.12 Merger, Purchase and Sale...................................................................... 29
7.13 Asset Coverage Ratio........................................................................... 29
7.14 Liens.......................................................................................... 30
7.15 Guaranties..................................................................................... 30
7.16 Other Agreements............................................................................... 30
7.17 Transactions with Related Parties.............................................................. 30
7.18 Payment of Management Fees..................................................................... 30
7.19 Other Indebtedness............................................................................. 31
7.20 Changes to Trust Agreement, etc................................................................ 31
7.21 Violation of Investment Restrictions, etc...................................................... 31
7.22 Proceeds of Loans.............................................................................. 31
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8. CONDITIONS PRECEDENT TO ALL LOANS.................................................................... 31
8.1 Notice......................................................................................... 31
8.2 Default........................................................................................ 31
8.3 Warranties..................................................................................... 31
8.4 Certification.................................................................................. 31
8.5 Form U-1....................................................................................... 32
8.6 Borrowing Certificate.......................................................................... 32
8.7 Minimum Net Asset Value........................................................................ 32
9. CONDITIONS PRECEDENT TO INITIAL LOANS................................................................ 32
9.1 Note........................................................................................... 32
9.2 Resolutions.................................................................................... 32
9.3 Incumbency Certificate......................................................................... 32
9.4 Opinion........................................................................................ 33
9.5 Net Asset Value Certificate.................................................................... 33
9.6 Consent of Investment Adviser.................................................................. 33
10. ADDITION OF NEW PARTIES.............................................................................. 33
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10.1 New Parties.................................................................................... 33
11. EVENTS OF DEFAULT AND REMEDIES....................................................................... 33
11.1 Events of Default.............................................................................. 33
11.2 Remedies....................................................................................... 35
12. THE AGENT............................................................................................ 36
12.1 Appointment and Authorization.................................................................. 36
12.2 Delegation of Duties........................................................................... 36
12.3 Liability of Agent............................................................................. 36
12.4 Reliance by Agent.............................................................................. 37
12.5 Notice of Event of Default..................................................................... 37
12.6 Credit Decision................................................................................ 38
12.7 Indemnification of Agent....................................................................... 38
12.8 Agent in Individual Capacity................................................................... 39
12.9 Successor Agent................................................................................ 39
13. GENERAL.............................................................................................. 39
13.1 Waiver and Amendments.......................................................................... 39
13.2 Notices........................................................................................ 40
13.3 Expenses....................................................................................... 41
13.4 Funds Indemnification.......................................................................... 41
13.5 Information.................................................................................... 42
13.6 Severability................................................................................... 42
13.7 Law............................................................................................ 43
13.8 Successors..................................................................................... 43
13.9 Waiver of Jury Trial........................................................................... 44
EXHIBITS
EXHIBIT A - BORROWING CERTIFICATE
EXHIBIT B - FORM OF PROMISSORY NOTE (Fund without Portfolios)
EXHIBIT B-1 - PROMISSORY NOTE (Fund with Portfolios)
EXHIBIT C - DESIGNATION OF PORTFOLIOS
EXHIBIT D - SCHEDULE OF LITIGATION
EXHIBIT E - SCHEDULE OF CONTINGENT LIABILITIES
EXHIBIT F - BORROWING BASE CERTIFICATE
EXHIBIT G - FUNDS' AND PORTFOLIOS' INVESTMENT RESTRICTIONS
EXHIBIT H - CONSENT LETTER
EXHIBIT I - FORM OF OPINION OF COUNSEL
EXHIBIT J - FORM OF ASSIGNMENT AND ACCEPTANCE
SCHEDULES
SCHEDULE I - COMMITMENTS AND PRO RATA SHARES
SCHEDULE II - OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of February 20, 1998 (this
"Agreement"), is entered into among each of the funds (each, a "Fund")
originally a party hereto or which may become a party hereto pursuant to the
terms hereof, the various banks as are or may become party hereto pursuant to
the terms hereof (individually, a "Bank" and, collectively, the "Banks") and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), a national
banking association, as agent (in such capacity, the "Agent") for the Banks.
In consideration of the mutual agreements herein contained, the parties
hereto agree as follows:
1. DEFINITIONS, INTERPRETATION OF AGREEMENT AND
COMPLIANCE WITH FINANCIAL RESTRICTIONS.
1.1 Definitions. In addition to the terms defined elsewhere in
this Agreement, the following terms shall have the meanings indicated for
purposes of this Agreement (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Act" means the Investment Company Act of 1940, as amended,
modified, or supplemented from time to time, and all rules and regulations
promulgated thereunder, and any successor statute and associated regulations.
"Adviser" means Xxxx Xxxxx Fund Adviser, Inc. or Xxxx Xxxxx
Capital Management, Inc., as the case may be, as investment adviser or
sub-adviser to a Fund or a Portfolio together with any successor thereto
permitted by Section 7.2(f) hereof.
"Adviser Persons" is defined in Section 1.6.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another Person if
the controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
"Agent" has the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Agent-Related Persons" means BofA and any successor agent
arising under Section 12.9, together with their respective Affiliates
(including, in the case of BofA, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set
forth on Schedule II hereto in relation to the Agent or such other address as
the Agent may from time to time specify.
"Agreement" means this Credit Agreement, as it may be amended,
modified or supplemented from time to time.
"Arranger" means BancAmerica Xxxxxxxxx Xxxxxxxx.
"Asset Coverage Ratio" means, with respect to any Fund or
Portfolio at any time, the ratio which the value of the Total Assets of such
Fund or Portfolio (reduced by the value of assets subject to Liens) at such time
less all liabilities and indebtedness not represented by Senior Securities of
such Fund or Portfolio, bears to the aggregate amount of Senior Securities
Representing Indebtedness of such Fund or Portfolio at such time.
"Assignee" has the meaning assigned to such term in Section
13.8(b).
"Assignment and Acceptance" has the meaning assigned to such
term in Section 13.8(b).
"Attorney Costs" means and includes any and all reasonable
fees and disbursements of any law firm or other external counsel, the reasonable
allocated cost of internal legal services and all disbursements of internal
counsel.
"Bank" and "Banks" have the meanings assigned to such terms in
the introductory paragraph of this Agreement.
"BofA" has the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Banking Day" means any day other than a Saturday, Sunday or
legal holiday on which banks are authorized or required to be closed in Chicago,
Illinois, Xxx Xxxx, Xxx Xxxx xxx Xxx Xxxxxxxxx, Xxxxxxxxxx and, with respect to
Eurodollar Loans, a day on which dealings in Dollars may be carried on by the
Agent in the interbank eurodollar market.
"Borrowing" means a borrowing hereunder consisting of Loans of
the same type made to a Fund or Portfolio on the same day by the Banks under
Section 2
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and, other than in the case of Federal Funds Rate Loans, having the same
Interest Period.
"Borrowing Base" means the amount defined as such in Section
4.5 with respect to each Fund or Portfolio, as the case may be.
"Borrowing Base Certificate" means a Borrowing Base
Certificate as defined in Section 7.1(c).
"Borrowing Certificate" means a certificate provided by a Fund
or Portfolio, in the form of Exhibit A hereto.
"Capitalized Lease" of any Person means all monetary
obligations of such Person under any leasing or similar arrangement which, in
accordance with GAAP, are or would be classified as capitalized leases on a
balance sheet of such Person.
"Code" means the Internal Revenue Code of 1986 and any
successor statute of similar import, together with the regulations thereunder,
in each case as in effect from time to time. References to sections of the Code
shall be construed to also refer to any successor sections.
"Commitment" means, relative to any Bank, such Bank's
obligation to make Loans pursuant to Section 2.1.
"Commitment Amount" means, on any date, $150,000,000, as such
amount may be reduced from time to time pursuant to Section 4.3.
"Credit Documents" means this Agreement, any Notes and all
other documents delivered to the Agent or any Bank in connection herewith.
"Dollars" and the symbol "$" mean lawful money of the United
States of America.
"Eligible Lender" means an entity that is a "bank" (as such
term is defined in the Act) but not an "affiliated person" (as such term is
defined in the Act) or "principal underwriter" (as such term is defined in the
Act) of any Fund or Portfolio or an "affiliated person" (as such term is defined
in the Act) of any such Person.
"Eurocurrency Reserve Requirement" means, with respect to any
Eurodollar Loan for any Interest Period, a percentage equal to the daily average
during such Interest Period of the percentages in effect on each day of such
Interest Period, as prescribed by the Federal Reserve Board (or any successor),
for determining the aggregate maximum reserve requirements (including all basic,
supplemental, marginal and other reserves) applicable to "Eurocurrency
liabilities" pursuant to Regulation D or
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any other then applicable regulation of the Federal Reserve Board (or any
successor) which prescribes reserve requirements applicable to "Eurocurrency
liabilities," as presently defined in Regulation D. Without limiting the effect
of the foregoing, the Eurocurrency Reserve Requirement shall reflect any other
reserves required to be maintained against (i) any category of liabilities that
includes deposits by reference to which the Interbank Rate (Reserve Adjusted) is
to be determined or (ii) any category of extensions of credit or other assets
that includes the Loans. For purposes of this Agreement, any Eurodollar Loan
hereunder shall be deemed to be "Eurocurrency liabilities," as defined in
Regulation D, and, as such, shall be deemed to be subject to such reserve
requirements without the benefit of, or credit for, proration, exceptions or
offsets which may be available from time to time under Regulation D.
"Eurodollar Loan" means any Loan which bears interest at a
rate determined with reference to the Interbank Rate (Reserve Adjusted).
"Eurodollar Margin" means 0.50%.
"Event of Default" means any of the events described in
Section 11.1.
"Federal Funds Rate" means, for any day, the rate per annum as
quoted by the Federal Reserve Bank of New York and confirmed in the daily
statistical release designated as H.15, or any successor publication, published
by the Federal Reserve Bank of New York (including any such successor "H.15")
for the preceding Banking Day opposite the caption "Federal Funds (Effective)";
or, if for any relevant day such rate is not so published on any such preceding
Banking Day, the rate for such day will be the arithmetic mean as determined by
the Agent of the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (New York City time) on that day by each of three
leading brokers of Federal funds transactions in New York City selected by the
Agent.
"Federal Funds Rate Margin" means 0.50%.
"Federal Funds Rate Loan" means any loan which bears interest
at a rate determined with reference to the Federal Funds Rate.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System.
"Fiscal Year" means each fiscal year of any Fund or Portfolio,
as the case may be. References to a Fiscal Year with a number corresponding to
any calendar year (e.g. "Fiscal Year 1994") refer to the Fiscal Year ending on a
date occurring during such calendar year.
"Fund" has the meaning assigned to such term in the Preamble.
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"GAAP" means generally accepted accounting principles as
applied in the preparation of the financial statements of the Funds and
Portfolios referred to in Section 6.6.
"Indebtedness" of any Person means, without duplication, (i)
any obligation of such Person for borrowed money, including, without limitation,
(a) any obligation of such Person evidenced by bonds, debentures, notes or other
similar debt instruments or arising out of a reverse repurchase transaction, and
(b) any obligation for borrowed money which is non-recourse to the credit of
such Person but which is secured by a Lien on any asset of such Person; (ii) any
obligation of such Person on account of deposits or advances; (iii) any
obligation of such Person for the deferred purchase price of any property or
services, except Trade Accounts Payable; (iv) any obligation of such Person as
lessee under a Capitalized Lease; (v) any Indebtedness of another Person secured
by a Lien on any asset of such first Person, whether or not such Indebtedness is
assumed by such first Person; and (vi) any guaranty or other contingent
liability, direct or indirect, with respect to any obligation of another Person,
except for the endorsement of items for collection in the ordinary course of
such first Person's business. For all purposes of this Agreement, the
Indebtedness of any Person shall include the Indebtedness of any partnership or
joint venture in which such Person is a general partner or joint venturer.
"Indemnified Liabilities" has the meaning assigned to such
term in Section 13.4.
"Indemnified Person" has the meaning assigned to such term in
Section 13.4.
"Interbank Rate," applicable to any Interest Period, means the
rate of interest per annum determined by the Agent as the rate at which dollar
deposits in the approximate amount of BofA's Eurodollar Loan for such Interest
Period would be offered by BofA's Grand Cayman Branch, Grand Cayman, B.W.I. (or
such other office as may be designated for such purpose by BofA), to major banks
in the offshore dollar interbank market at their request at approximately 11:00
a.m. (New York City time) two Banking Days prior to the commencement of such
Interest Period.
"Interbank Rate (Reserve Adjusted)" means, with respect to
each Interest Period for a Eurodollar Loan, a rate per annum (rounded upward to
the nearest 1/100 of 1%) determined pursuant to the following formula:
Interbank Rate = Interbank Rate
(Reserve Adjusted) 1-Eurocurrency Reserve Requirement
The Interbank Rate shall be adjusted automatically as to all Eurodollar
Loans then outstanding as of the effective date of any change in the
Eurocurrency Reserve Requirement.
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"Interest Period" means with respect to any Eurodollar Loan,
the period commencing on the Borrowing date of such Eurodollar Loan, and ending
on the date which is one day, one week, two weeks or three weeks later, as the
case may be (in each case as selected by the applicable Fund or Portfolio, as
the case may be, pursuant to Section 2.3 or Section 2.4); provided, however,
that:
(a) any Interest Period which would otherwise end on a day
which is not a Banking Day shall end on the next succeeding Banking Day
unless such next succeeding Banking Day falls in another calendar
month, in which case such Interest Period shall end on the next
preceding Banking Day; and
(b) no Interest Period shall extend beyond the Termination
Date.
"Lien" means any mortgage, pledge, hypothecation, judgment
lien or similar legal process, title retention lien, or other lien or security
interest, including, without limitation, the interest of a vendor under any
conditional sale or other title retention agreement and the interest of a lessor
under any Capitalized Lease. The term Lien shall not include the property
interest acquired by a counterparty in connection with a securities repurchase
agreement between a Fund or Portfolio, as the case may be, and a counterparty.
"Loan" means a loan by a Bank to a Fund or Portfolio, as the
case may be, pursuant to Section 2.1, and shall be a Federal Funds Rate Loan or
a Eurodollar Loan (each of which shall be a "type" of Loan).
"Majority Banks" means, at any time, at least two Banks then
holding at least 66-2/3% of the then aggregate unpaid principal amount of the
Loans or, if no such principal amount is then outstanding, at least two Banks
then having at least 66-2/3% of the Commitments.
"Material Adverse Change" means any change that the Majority
Banks determine to be material and adverse to (x) the condition (financial or
otherwise), business or prospects of a Fund or Portfolio, as the case may be, or
(y) the ability of a Fund or Portfolio, as the case may be, to duly and
punctually pay and perform all or any of its obligations under this Agreement or
the relevant Notes; provided, however, that if a Fund's or a Portfolio's Asset
Coverage Ratio equals or exceeds 6 to 1, a Material Adverse Change shall not
have occurred.
"Material Adverse Effect" means a material and adverse effect
on (i) the condition (financial or other), business, operations or prospects of
a Fund or Portfolio, as the case may be, or (ii) the ability of a Fund or
Portfolio, as the case may be, to duly and punctually pay and perform its
obligations under this Agreement and its Note.
"Net Asset Value" means, at any date, Total Assets less Total
Liabilities.
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"Note" means the promissory note of a Fund or Portfolio, as
the case may be, substantially in the form set forth as Exhibit B or Exhibit
B-1, as appropriate, as such promissory note may be amended, modified or
supplemented from time to time, and the term "Note" shall include any
substitutions for, or renewals of, such promissory note.
"Originating Bank" has the meaning assigned to such term in
Section 13.8(c).
"Participant" has the meaning assigned to such term in Section
13.8(c).
"Payment Date" means (i) with respect to any Eurodollar Loan,
the last day of each Interest Period with respect thereto; and (ii) as to any
Federal Funds Rate Loan and any fees, the last day of each March, June,
September and December, commencing on the first such date to occur after the
date hereof.
"Person" means an individual, partnership, corporation, trust,
joint venture, joint stock company, association, unincorporated organization,
government or agency or political subdivision thereof, or other entity.
"Plan" means any "pension plan," or "welfare benefit plan" as
such terms are defined in the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"Portfolio" means each series or class of shares of a Fund
that constitutes a "series" under the Act, which is a signatory to this
Agreement or any amendment hereto or which such Fund has previously identified
to the Banks as a Portfolio in a certificate in the form of Exhibit C and has
been approved by the Banks hereunder.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of such Bank's Commitment divided by the combined
Commitments of all Banks, as set forth on Schedule I, as such amount may be
adjusted from time to time as a result of an assignment made by such Bank
pursuant to Section 13.8 or otherwise.
"Reference Rate" means, at any time, the rate of interest then
most recently announced by the BofA at San Francisco, California as its
reference rate. It is a rate set by the BofA based upon various factors
including the BofA's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans. Loans
may be priced at, above or below the Reference Rate. Any change in the Reference
Rate shall take effect at the opening of business on the date specified in the
public announcement of such change.
"Related Party" means, with respect to a Fund or Portfolio, as
the case may be, and for purposes of Section 7.17 only, any Person (i) which
directly or
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indirectly through one or more intermediaries controls, or is controlled by, or
is under common control with, such Fund or Portfolio, (ii) which beneficially
owns or holds 5% or more of the equity interest of such Fund or Portfolio or
(iii) 5% or more of the equity interest of which is beneficially owned or held
by such Fund or Portfolio. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Senior Security" means any bond, debenture, note, or similar
obligation or instrument constituting a security and evidencing indebtedness,
and any stock of a class having priority over any other class as to distribution
of assets or payment of dividends.
"Senior Security Representing Indebtedness" means any Senior
Security other than stock.
"Subsidiary" means, with respect to a Fund or Portfolio, as
the case may be, (i) any corporation more than 50% of whose stock of any class
or classes having by the terms thereof ordinary voting power to elect a majority
of the directors of such corporation (irrespective of whether or not at the time
stock of any class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the time owned
by the Fund or Portfolio and/or one or more Subsidiaries of such Fund or
Portfolio and (ii) any partnership, association, joint venture or other entity
in which such Fund or Portfolio and/or one or more Subsidiaries of such Fund or
Portfolio has more than a 50% equity interest at the time.
"Taxes" with respect to any Person means taxes, assessments or
other governmental charges or levies imposed upon such Person, its income or any
of its properties, franchises or assets.
"Termination Date" means February 19, 1999, or such earlier
date as may be fixed by the Funds and Portfolios on at least 15 Banking Days'
prior written or telephonic notice received by the Agent. The Funds and
Portfolios shall promptly confirm any telephonic notice in writing. Upon the
request of the Funds and Portfolios, and in the Banks' sole discretion, the
Termination Date may be extended for successive 364-day periods as provided in
Section 2.7.
"Total Assets" means, with respect to a Fund or Portfolio, as
the case may be, as of any date, an amount equal to the aggregate fair market
value of all items which would be set forth as assets on a balance sheet of such
Fund or Portfolio on such date in accordance with GAAP. "Fair market value," for
purposes of this definition, shall be determined as follows: each portfolio
security traded on a national securities exchange or traded over-the-counter and
quoted on the Nasdaq National Market (or similar quotation system providing
daily quotations with respect to the last sale prices of traded securities)
shall be valued at the last sale price on the date of valuation; provided that
any security so
8
traded and quoted for which there was no sale on the date of valuation, and
securities traded over-the-counter but not quoted on the Nasdaq National Market
or any such similar quotation system, shall be valued at an amount equal to the
arithmetic mean of the most recent available bid and asked quotations therefor,
except that debt securities not traded on a national securities exchange nor
quoted on the Nasdaq National Market or any such similar quotation system shall
be assigned such values as shall be determined with respect thereto by the
pricing service normally utilized by such Fund or Portfolio to determine the
fair market value of such securities. Upon the written request of the Agent, a
Fund or Portfolio shall promptly furnish all such information as the Agent shall
reasonably request relating to the value of any portfolio security or other
asset of such Fund or Portfolio or the assignment of values thereto by such Fund
or Portfolio or any other Person.
"Total Liabilities" means, with respect to a Fund or Portfolio
as of any date, the aggregate amount of all items which would be set forth as
liabilities on a balance sheet of such Fund or Portfolio on such date in
accordance with GAAP.
"Trade Accounts Payable" of any Person means trade accounts
payable of such Person with a maturity of not greater than ninety (90) days
incurred in the ordinary course of such Person's business.
"Trust Agreement" means, with respect to a Fund that is a
business trust, such Fund's Declaration of Trust, as amended from time to time.
"Unmatured Event of Default" means any event or condition
which, with the lapse of time or giving of notice to a Fund or a Portfolio, or
both, would constitute an Event of Default.
1.2 Other Definitional Provisions. Unless otherwise defined or
the context otherwise requires, all financial and accounting terms used herein
or in any certificate or other document made or delivered pursuant hereto shall
be defined in accordance with GAAP. Unless otherwise defined therein, all terms
defined in this Agreement shall have the defined meanings when used in a Note or
in any certificate or other document made or delivered pursuant hereto.
1.3 Interpretation of Agreement. A Section or an Exhibit is,
unless otherwise stated, a reference to a section hereof or an exhibit hereto,
as the case may be. Section captions used in this Agreement are for convenience
only, and shall not affect the construction of this Agreement. The words
"hereof," "herein," "hereto," and "hereunder" and words of similar purport when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. Unless expressly indicated otherwise,
when used in this Agreement (including the Schedules and Exhibits hereto) "from"
means "from and including" and "to" means "to but excluding". Unless expressly
indicated otherwise, when used in this Agreement (including the Schedules and
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Exhibits hereto) "to the best of a Person's knowledge" means "to the best of
such Person's knowledge after due inquiry".
1.4 Compliance with Financial Restrictions. Compliance with
each of the financial ratios and restrictions contained in Section 7 shall,
except as otherwise provided herein, be determined in accordance with GAAP
consistently followed.
1.5 Assumptions Regarding Structure. The parties acknowledge
and agree that certain of the Funds under this Agreement are comprised of
separate Portfolios and that such Portfolios are not separately existing legal
entities entitled to enter into contractual agreements or to execute instruments
and, for these reasons, the relevant Funds are executing this Agreement and the
relevant Notes on behalf of their specified respective Portfolios.
1.6 Authority of Adviser; Adviser Disclaimer. Each of the
Funds and Portfolios hereby confirms that its Adviser has been duly authorized
to act on behalf of such Fund or Portfolio for purposes of this Agreement and
the relevant Note and to take all actions which such Fund or such Portfolio is
entitled or required to take hereunder or thereunder, including, without
limitation, requesting the making, continuation or conversion of Loans on behalf
of a Fund or Portfolio pursuant to Section 2, reducing or terminating the
Commitment as to one or more Funds or Portfolios, and executing and delivering
Borrowing Certificates, Borrowing Base Certificates and any and all other
certificates, reports, financial information and notices required to be
delivered to the Agent and/or the Banks hereunder. Notwithstanding the foregoing
or anything to the contrary contained in this Agreement, the parties hereto
acknowledge and agree that (a) in taking any such action hereunder or under a
Note the Adviser is acting solely in its capacity as investment adviser for the
Funds and Portfolios and not in its individual capacity and (b) neither the
Adviser nor any of its officers, employees or agents (with the Adviser,
collectively, "Adviser Persons") shall have any liability whatsoever to any Bank
or the Agent for any action taken or omitted to be taken by any of them in
connection with this Agreement or any Note nor shall any of them be bound by or
liable for any indebtedness, liability or obligation hereunder or under the Note
and (c) no Adviser Person shall be responsible in any manner to the Agent or the
Banks for the truth, completeness or accuracy of any statement, representation,
warranty or certification contained in this Agreement or in any information,
report, certificate or other document furnished by the Adviser on behalf of any
Fund or Portfolio in connection with this Agreement, including, without
limitation, any Borrowing Certificate, any Borrowing Base Certificate, and any
certificate or notice furnished pursuant to Section 7.1 or 7.2 hereof; provided
that, in the case of clauses (b) and (c) above, the conduct of the Adviser
Persons or any of them did not constitute negligence, misconduct or a breach of
any obligation to any Fund or Portfolio.
10
2. COMMITMENTS OF THE BANKS AND CERTAIN LOAN TERMS.
2.1 Loans. Subject to the terms and conditions of this Agreement
and in reliance upon the warranties of each of the Funds set forth herein, each
Bank severally agrees to make individual loans (collectively called the "Loans"
and individually called a "Loan") to the Funds or, in the case of a Fund
comprised of one or more Portfolios, to such Portfolios as are shown on the
signature pages hereof or which are designated in the manner specified in
Section 10.1, in immediately available funds, as designated in a Borrowing
Certificate provided pursuant to Section 2.3, which Loans each Fund or
Portfolio, as the case may be, may repay and reborrow during the period from the
date hereof to, but not including, the Termination Date. The commitment of each
Bank and the outstanding principal amount of Loans made by each Bank hereunder
shall not exceed at any time the aggregate amount set forth on Schedule I (such
amount as the same may be reduced under Section 4.3 or as a result of one or
more assignments as permitted herein, the Bank's "Commitment"); provided,
however, that, after giving effect to any Borrowing, the aggregate principal
amount of all outstanding Loans shall not at any time exceed the Commitment
Amount, and provided that the aggregate principal amount of all Loans
outstanding from time to time to any Fund or Portfolio, as the case may be,
shall not exceed the Borrowing Base for such Fund or Portfolio.
2.2. Loan Options. Each Loan shall be either a Federal Funds Rate
Loan or a Eurodollar Loan, as shall be selected by the relevant Fund or
Portfolio, except as otherwise provided herein. Any combination of types of
Loans may be outstanding at the same time, except that no more than three Loans
having different Interest Periods may be outstanding at any one time with
respect to each Fund or, with respect to a Fund comprised of Portfolios, each
Portfolio of that Fund.
2.3 Borrowing Procedures.
(a) Notice to Agent. A Fund or Portfolio shall give the Agent
prior written or telephonic notice of each Loan, which shall be received by the
Agent, in the case of a Federal Funds Rate Loan, not later than 11:00 a.m.,
Chicago time, on the Borrowing date with respect to such Loan, or, in the case
of a Eurodollar Loan, not later than 11:00 a.m., Chicago time, three (3) Banking
Days prior to the Borrowing date with respect to such Loan. Each such notice
shall specify (i) the Borrowing date (which shall be a Banking Day), (ii) the
amount and type of Loan, (iii) the initial Interest Period for such Loan, and
(iv) in the case of a Fund with Portfolios, the name of the Portfolio that will
utilize the proceeds of such Loan. Each Loan shall be in a minimum amount of
$500,000 or in an integral multiple of $100,000 in excess thereof. The relevant
Fund or Portfolio shall promptly confirm each such telephonic notice in writing
by providing to the Agent a Borrowing Certificate signed by such Fund's or
Portfolio's Treasurer or Assistant Treasurer or a designated officer of the
Adviser, on behalf of the Fund or Portfolio (it being understood, however, that
the Fund's, the Portfolio's or the Adviser's failure to confirm any telephonic
notice or otherwise comply with the provisions of this Section 2.3 shall not
affect the obligation of the relevant Fund or Portfolio to repay each Loan in
11
accordance with the terms of this Agreement and the relevant Notes). In the
event that more than one Loan request is made on any Banking Day, the Agent
shall, for purposes of ensuring that the aggregate of the then-outstanding Loans
and the Loans which are the subject of Loan requests will not exceed the
Commitment Amount, process the Loan requests in the order of receipt.
(b) Notice to Banks. The Agent will promptly notify each Bank of
its receipt of any Loan request and of the amount of such Bank's Pro Rata Share
of the requested Loan.
(c) Transfers to Agent. Each Bank will make the amount of its Pro
Rata Share of each Loan available to the Agent for the account of the borrowing
Fund or Portfolio at the Agent's Payment Office by 1:00 p.m. (Chicago time) on
the Borrowing date requested by the borrowing Fund or Portfolio in funds
immediately available to the Agent for deposit to the account which the Agent
shall from time to time specify by notice to the Banks. The proceeds of all such
Loans will then be made available to the borrowing Fund or Portfolio by the
Agent in accordance with written instructions provided to the Agent by the Fund
or Portfolio in like funds as received by the Agent. No Bank's obligation to
make any Loan shall be affected by any other Bank's failure to make any Loan.
(d) Disbursement to Fund or Portfolio. The Agent will pay to the
relevant Fund or Portfolio the amount of each Loan on the date specified in the
notice of Borrowing with respect to such Loan upon satisfaction of the
applicable conditions precedent with respect to such Loan.
2.4 Continuation and/or Conversion of Loans. A Fund or Portfolio
may elect to continue an outstanding Eurodollar Loan into a subsequent Interest
Period to begin on the day following the last day of such current Interest
Period or convert a Eurodollar Loan into a Federal Funds Rate Loan by giving the
Agent prior written or telephonic notice of such continuation or conversion,
which shall be received by the Agent not later than 11:00 a.m., Chicago time,
three (3) Banking Days prior to the effective date of any continuation or
conversion which results in a Eurodollar Loan or 11:00 a.m., Chicago time, on
the date of conversion with respect to such Loan that is to be continued as a
Federal Funds Rate Loan; provided that no Loan shall be outstanding for a period
of more than twenty-one (21) days and provided further, that there shall be no
more than three Interest Periods in respect of a Loan. Each such notice shall
specify (a) the effective date of continuation or conversion (which shall be a
Banking Day), (b) the amount of such Loan, and (c) the Interest Period for such
Loan. The Fund or Portfolio making such an election shall promptly confirm each
such telephonic notice in writing by providing the Agent a new Borrowing
Certificate signed by the relevant Fund's or Portfolio's Treasurer or Assistant
Treasurer or a designated officer of the Adviser, on behalf of such Fund or
Portfolio. Absent timely notice of continuation or conversion, each Eurodollar
Loan shall automatically convert into a Federal Funds Rate Loan on the last day
of the current Interest Period for such Loan unless paid in full on such last
day.
12
At any time that an Event of Default or an Unmatured Event of Default shall
exist, any Loans may be converted or continued only as Federal Funds Rate Loans.
The Agent will promptly notify each Bank of its receipt of a request to convert
or continue a Loan. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Loans with
respect to which the notice was given held by each Bank.
2.5 Note Evidencing Loans. The Loans made to a Fund or Portfolio
by each Bank under its Commitment shall be evidenced by a Note, which shall be
dated as of the date hereof and shall mature (unless accelerated pursuant to
Section 11.2) on the Termination Date. All Loans made by the Banks to a Fund or
Portfolio pursuant to this Agreement and all payments of principal shall be
evidenced by the Banks in their records which records shall be rebuttably
presumptive evidence of the subject matter thereof.
2.6 Source of Repayment.
(a) Notwithstanding any other provision of this Agreement, the
parties agree that the assets and liabilities of each Portfolio of a Fund are
separate and distinct from the assets and liabilities of each other Portfolio of
that Fund. No Portfolio or Fund shall be liable or shall be charged for any
debt, obligation, liability, fee, or expense arising out of or in connection
with a transaction entered into by or on behalf of any other Portfolio or Fund
or any judgment with respect thereto.
(b) With respect to each Fund that is organized as a Massachusetts
business trust, the parties hereby agree that this Agreement is not executed on
behalf of the trustees of such Fund as individuals, and the obligations of such
Fund, or a Portfolio of such Fund (with respect to a Fund with Portfolios),
under this Agreement and its Note(s) are not binding on any of the trustees,
officers or shareholders of such Fund individually, but are binding upon only
the assets and property of such Fund or Portfolio, as the case may be.
(c) Nothing in this Section 2.6 shall affect the rights of the
Agent or the Banks against Adviser Persons as provided in Section 1.6.
2.7 Extension of Scheduled Termination Date. Between 60 and 45
days prior to the scheduled Termination Date, the Funds and Portfolios may, by
written notice to the Agent, request that all Banks extend for an additional 364
days the scheduled Termination Date. The Agent shall deliver a copy of such
notice to each Bank promptly following its receipt thereof. Such extension so
requested shall become effective on the then-current scheduled Termination Date
if (and only if) on or prior to 30 days after such notice, each Bank shall have
consented to such extension in writing by notice to the Agent. If a Bank shall
not respond to any such request, it shall be deemed to have refused to extend.
The Agent shall promptly inform the Funds and Portfolios of each Bank's consent
to or rejection of, or failure to consent to, any Termination Date extension
request. If any Bank (a "Non-Extending Bank") shall not agree to such extension,
but Banks holding at least 66% of the Commitments shall agree to such
13
extension, the Funds and Portfolios may request one or more of the other Banks
to purchase the Commitment of the Non-Extending Bank or, with the consent of the
Agent, the Funds and Portfolios may request an Eligible Lender to purchase the
Commitment of the Non-Extending Bank (any such Bank or Eligible Lender
purchasing all or a portion of such Commitment being called a "Replacement
Bank"). Any such purchase by a Replacement Bank shall be subject to the terms of
Section 13.8(b), except that the relevant Fund(s) and/or Portfolio(s) shall pay
any cost related to breakage of existing Interest Periods or the cost of funding
existing Loans for the remainder of existing Interest Periods.
3. INTEREST AND FEES.
3.1 Interest.
(a) Federal Funds Rate Loans. The unpaid principal amount of each
Federal Funds Rate Loan shall bear interest prior to maturity at a rate per
annum equal to the Federal Funds Rate in effect from time to time plus the
Federal Funds Rate Margin. Accrued interest on each Federal Funds Rate Loan
shall be payable on each Payment Date and at maturity.
(b) Eurodollar Loans. The unpaid principal amount of each
Eurodollar Loan shall bear interest prior to maturity at a rate per annum equal
to the Interbank Rate (Reserve Adjusted) in effect for each Interest Period with
respect to such Eurodollar Loan plus the Eurodollar Margin. Accrued interest on
each Eurodollar Loan shall be payable on each Payment Date and at maturity.
(c) Interest After Maturity. Each Fund and, in the case of a Fund
comprised of Portfolios, each Fund on behalf of its Portfolios shall pay to the
Banks interest on any amount of principal of any Loan borrowed on behalf of each
such Fund or Portfolio which is not paid when due, whether at stated maturity,
by acceleration or otherwise, accruing from and including the date such amount
shall have become due to, but not including, the date of payment thereof in full
at the rate per annum which is equal to the greater of (i) 2% in excess of the
rate applicable to the unpaid principal amount immediately before it became due,
or (ii) 2% in excess of the Reference Rate in effect from time to time. After
maturity, accrued interest shall be payable on demand.
3.2 Commitment Fee. The Funds and Portfolios shall collectively
pay to the Banks a commitment fee equal to 0.07% per annum on the average daily
unused portion of the Commitment Amount from time to time during the period from
and including the date of this Agreement to, but not including, the earlier of
the Termination Date or the date of termination of the Commitment Amount
pursuant to Section 4.3 or 11.2. Such commitment fee shall be payable in arrears
on each Payment Date and a pro-rated installment shall be payable on the
Termination Date or the date of termination of the Commitments for any period
then ending for which such commitment fee shall not
14
have been theretofore paid. Notwithstanding the foregoing, the amount of the
commitment fee shall be reduced pro rata in accordance with any termination, or
reduction from time to time in the Commitment Amount. Each Fund or Portfolio, as
the case may be, shall be liable only for its portion of the commitment fee, and
such Fund or Portfolio shall not be liable for any portion of the commitment fee
of any other Fund or Portfolio. The Funds shall notify the Agent at least two
Banking Days in advance of a commitment fee Payment Date of the manner in which
the fees to be paid on such Payment Date are to be allocated among the Funds and
Portfolios.
3.3 Method of Calculating Interest and Fees. Interest on each
Loan shall be calculated on the basis of a year consisting of 360 days and paid
for actual days elapsed, calculated as to each Interest Period from and
including the first day thereof to, but not including, the last day thereof. Any
fees shall be calculated on the basis of a year consisting of 360 days and paid
for actual days elapsed.
4. PAYMENTS, PREPAYMENTS, REDUCTION OR TERMINATION OF THE
COMMITMENTS AND SETOFF.
4.1 Place of Payment. All payments hereunder (including payments
with respect to the Notes) shall be made without setoff or counterclaim and
shall be made to the Agent in immediately available funds prior to 12:30 p.m.,
California time, on the date due at Bank of America, ABA No. 0000-0000-0, Agency
Administration Services, #5596, Account No.122331-16136, Reference: Xxxx Xxxxx,
or at such other place or for such other account as may be designated by the
Agent to the Funds and Portfolios in writing. Any payments received after such
time shall be deemed received on the next Banking Day. The Agent will promptly
distribute to each Bank its Pro Rata Share (or other applicable share as
expressly provided herein) of such payment in like funds as received. Subject to
the definition of the term "Interest Period," whenever any payment to be made
hereunder or under a Note shall be stated to be due on a date other than a
Banking Day, such payment may be made on the next succeeding Banking Day, and
such extension of time shall be included in the calculation of interest or any
fees.
4.2 Prepayments.
(a) Mandatory Prepayments. If at any time the outstanding
principal balance of a Fund's or Portfolio's, as the case may be, Loans
hereunder shall exceed the then-current Borrowing Base of such Fund or
Portfolio, such Fund or Portfolio shall immediately prepay the outstanding
principal amount of such Loans in an amount equal to such excess, subject to the
indemnification provisions of Section 5.5.
(b) Optional Prepayments. Each Fund or Portfolio, as the case may
be, may from time to time, upon at least two (2) Banking Days' prior written or
telephonic notice received by the Agent, prepay the principal of the Loans to
such Fund or Portfolio in whole or in part, as contemplated by Section 2.1;
provided, however, that any partial
15
prepayment of principal shall be in a minimum amount of $100,000 or in an
integral multiple of $100,000 in excess thereof, and provided further, that any
prepayment of principal shall be subject to the indemnification provisions of
Section 5.5, but shall otherwise be without any premium or penalty. Such Fund or
Portfolio shall promptly confirm any telephonic notice of prepayment in writing.
4.3 Reduction or Termination of the Commitment Amount. The Funds
and Portfolios may from time to time, upon at least 30 calendar days' prior
written or telephonic notice given by or on behalf of the Funds and Portfolios
and received by the Agent, permanently reduce the Commitment Amount, but only
upon payment of the unpaid principal amount of the Loans, if any, in excess of
the then-reduced amount of the Commitment Amount, plus (i) accrued interest to
the date of such payment on the principal amount being repaid and (ii) any
amount required to indemnify the Banks pursuant to Section 5.5 in respect of
such payment. Any such reduction shall be in a minimum amount of $1,000,000 and
in an integral multiple of $500,000 and shall be applied to each Bank according
to its Pro Rata Share. The Funds and Portfolios may at any time on like notice
terminate the Commitments upon payment in full of (a) the Loans, (b) accrued
interest thereon to the date of such payment, (c) any amount required to
indemnify the Banks pursuant to Section 5.5 in respect of such payment, and (d)
any other liabilities of the Funds and Portfolios hereunder. The Funds and
Portfolios shall promptly confirm any telephonic notice of reduction or
termination of the Commitments in writing.
4.4 Setoff. In addition to and not in limitation of all other
rights and remedies (including other rights of setoff) that the Banks may have,
a Bank shall, upon the occurrence of any Event of Default described in Section
11.1 or any Unmatured Event of Default described in Section 11.1(e), have the
right to appropriate and apply to any payment of any and all Loans and other
liabilities of a Fund or Portfolio hereunder (whether or not then due), in such
order of application as such Bank may elect, any and all balances, credits,
deposits (general or special, time or demand, provisional or final), accounts or
moneys of such Fund or Portfolio (and not any other Fund or Portfolio) then or
thereafter with such Bank. A Bank shall promptly advise the relevant Fund or
Portfolio and the Agent of any such setoff and application made with respect to
the Fund or Portfolio, but failure to do so shall not affect the validity of
such setoff and application.
4.5 Borrowing Base. The borrowing base (the "Borrowing Base") of
each Fund or Portfolio, as the case may be, as of any date shall be the amount
shown on each Borrowing Base Certificate or Borrowing Certificate, if
applicable, furnished from time to time with respect to such Fund or Portfolio.
4.6 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank at least one
Banking Day prior to the date of such Borrowing, that such Bank will not make
available as and when required hereunder to the Agent for the account of the
relevant Fund or Portfolio the
16
amount of that Bank's Pro Rata Share of the Borrowing, the Agent may assume that
each Bank has made such amount available to the Agent in immediately available
funds on the Borrowing date and the Agent may (but shall not be so required), in
reliance upon such assumption, make available to the relevant Fund or Portfolio
on such date a corresponding amount. If and to the extent any Bank shall not
have made its full amount available to the Agent in immediately available funds
and the Agent in such circumstances has made available to the relevant Fund or
Portfolio such amount, that Bank shall on the Banking Day following such
Borrowing date make such amount available to the Agent, together with interest
at the Federal Funds Rate for each day during such period. A notice of the Agent
submitted to any Bank with respect to amounts owing under this subsection (a)
shall be conclusive, absent manifest error. If such amount is so made available,
such payment to the Agent shall constitute such Bank's Loan on the Borrowing
date for all purposes of this Agreement. If such amount is not made available to
the Agent on the Banking Day following the Borrowing date, the Agent will notify
the relevant Fund or Portfolio of such failure to fund, and upon demand by the
Agent, the relevant Fund shall pay such amount to the Agent for the Agent's
account, together with interest thereon for each day elapsed since the date of
such Borrowing, at a rate per annum equal to the interest rate applicable at the
time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing date
shall not relieve any other Bank of any obligation hereunder to make a Loan on
such Borrowing date, but no Bank shall be responsible for the failure of any
other Bank to make the Loan to be made by such other Bank on any Borrowing date.
4.7 Sharing of Payments. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off or otherwise) in excess of its Pro Rata Share, such Bank shall
immediately (a) notify the Agent of such fact and (b) purchase from the other
Banks such participations in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment pro rata with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to the purchasing Bank to (ii) the total amount
so recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered. Each
Fund and Portfolio agrees that any Bank so purchasing a participation from
another Bank may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off with respect to such
participation) as fully as if such Bank were the direct creditor of the relevant
Fund in the amount of such participation. The Agent will keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and will in each case notify the
Banks following any such purchases or repayments.
17
5. ADDITIONAL PROVISIONS RELATING TO LOANS.
5.1 Increased Cost. If, as a result of any law, rule, regulation,
treaty or directive, or any change therein or in the interpretation or
administration thereof, or compliance by a Bank with any request or directive
(whether or not having the force of law) from any court or governmental
authority, agency or instrumentality:
(a) any tax, duty or other charge with respect to any Loan, any
Note, or such Bank's obligation to make Loans is imposed, modified or deemed
applicable, or the basis of taxation of payments to such Bank of the principal
of, or interest on, any Loan (other than taxes imposed on the overall net income
of such Bank by the jurisdiction in which such Bank has its principal office) is
changed;
(b) any reserve, special deposit, special assessment or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, such Bank is imposed, modified or deemed applicable; or
(c) any other condition affecting this Agreement or any Loan is
imposed on such the Bank or the interbank eurodollar market,
and such Bank determines that, by reason thereof, the cost to such Bank of
making or maintaining any Loan is increased, or the amount of any sum receivable
by such Bank hereunder or under the Note in respect of any Loan is reduced,
then each Fund and/or each Portfolio, as the case may be, whose Loan is affected
by the foregoing shall pay to such Bank upon demand such additional amount or
amounts as will compensate such Bank for such additional cost or reduction, not
to exceed an amount or amounts reasonably incurred, upon presentation by such
Bank of a statement in the amount or amounts and setting forth such Bank's
calculation thereof (provided that such Bank has not been compensated for such
additional cost or reduction in the calculation of the Eurocurrency Reserve
Requirement). Determinations by a Bank for purposes of this Section 5.1 of the
additional amounts required to compensate such Bank in respect of the foregoing
shall be conclusive in the absence of manifest error. In determining such
amounts, the relevant Bank may use any reasonable averaging, attribution and
allocation methods.
5.2 Deposits Unavailable or Interest Rate Unascertainable or
Inadequate; Impracticability. If any Fund or Portfolio has any Eurodollar Loan
outstanding or a Fund or Portfolio, as the case may be, has notified the Agent
of its intention to borrow a Eurodollar Loan as provided herein, then in the
event that, prior to any Interest Period, a Bank shall have determined in good
faith (which determination shall be conclusive and binding on the parties
hereto) that:
18
(i) deposits of the necessary amount for the relevant
Interest Period are not available to such Bank in the interbank
eurodollar market or that, by reason of circumstances affecting such
market, adequate and reasonable means do not exist for ascertaining the
Interbank Rate applicable to such Interest Period; or
(ii) the Interbank Rate (Reserve Adjusted) will not
adequately and fairly reflect the cost to such Bank of making or
funding the Eurodollar Loans for such Interest Period; or
(iii) the making or funding of Eurodollar Loans has become
impracticable as a result of any event occurring after the date of this
Agreement which, in the opinion of such Bank, materially and adversely
affects such Loans or such Bank's obligation to make such Loans,
then (x) any notice of a new Eurodollar Loan previously given by or on behalf of
any Fund or Portfolio, as the case may be, and not yet borrowed or converted
shall be deemed to be a notice to make a Federal Funds Rate Loan, and (y)
provided that such Fund or Portfolio has been notified of such determination by
the relevant Bank, such Fund or Portfolio shall be obligated, at its election,
either to prepay in full the outstanding Eurodollar Loans without any premium or
penalty (except as provided in Section 5.5) on the last day of the then-current
Interest Period with respect thereto or to convert any such Loans to Federal
Funds Rate Loans on such last day, unless payment or conversion of such Loans is
demanded sooner.
5.3 Changes in Law Rendering Eurodollar Loans Unlawful. If at any
time due to any new law, treaty or regulation, or any interpretation thereof by
any governmental or other regulatory authority charged with the administration
thereof, or for any other reason arising subsequent to the date hereof, it shall
become unlawful for a Bank to fund any Eurodollar Loan, Eurodollar Loans shall
not be made hereunder by such Bank for so long as it would be unlawful for such
Bank to do so. If any such change shall make it unlawful for a Bank to continue
any Eurodollar Loan previously made by it hereunder, each Fund or Portfolio
having Eurodollar Loans outstanding at such time shall, after being notified by
such Bank of the occurrence of such event, on the earlier of (i) the last day of
the then-current Interest Period or (ii) if required by such law, regulation or
interpretation, on such date as shall be specified in such notice, at such
Fund's or Portfolio's option, either convert each such Eurodollar Loan to a
Federal Funds Rate Loan or prepay such Loan to such Bank in full without any
premium or penalty (but subject to Section 5.5).
5.4 Discretion of the Bank as to Manner of Funding.
Notwithstanding any provision of this Agreement to the contrary, each Bank shall
be entitled to fund and maintain its funding of all or any part of its
Eurodollar Loans in any manner it sees fit; it being understood, however, that
for purposes of this Agreement, all determinations hereunder shall be made as if
such Bank had actually funded and maintained each
19
Eurodollar Loan during the Interest Period for such Loan through the purchase of
deposits having a term corresponding to such Interest Period and bearing an
interest rate equal to the Interbank Rate for such Interest Period (whether or
not such Bank shall have granted any participations in such Eurodollar Loan).
The Funds and Portfolios acknowledge that the Banks may fund all or any part of
the Loans by sales of participations to various participants, provided such
participants are banks.
5.5 Funding Losses. Each Fund or Portfolio, as the case may
be, will indemnify each Bank upon demand against any loss or expense which such
Bank may sustain or incur (including, without limitation, any loss or expense
sustained or incurred in obtaining, liquidating or employing deposits or other
funds acquired to effect, fund or maintain any Loan, but not including any loss
or expense incurred as a result of such Bank's gross negligence or wilful
misconduct) as a consequence of (i) any failure of any such Fund or Portfolio to
make any payment when due of any amount due hereunder, (ii) any failure of any
such Fund or Portfolio to borrow, continue or convert a Loan on a date specified
therefor in a notice thereof or (iii) any payment (including any payment made
pursuant to the Bank's demand for payment of the unpaid principal of the Loans),
prepayment or conversion of any Loan on a date other than the last day of the
Interest Period for such Loan. Other than the indemnification provided above, no
premium or penalty shall be payable in connection with any of the circumstances
described above.
5.6 Capital Adequacy. If a Bank shall reasonably determine
that the application or adoption of any law, rule, regulation, directive,
interpretation, treaty or guideline regarding capital adequacy, or any change
therein or in the interpretation or administration thereof, whether or not
having the force of law (including, without limitation, application of changes
to Regulation H and Regulation Y of the Federal Reserve Board issued by the
Federal Reserve Board and regulations of the Comptroller of the Currency,
Department of the Treasury, 12 CFR Part 3, Appendix A, issued by the Comptroller
of the Currency), increases the amount of capital required or expected to be
maintained by such Bank or any entity controlling such Bank, and such increase
is based upon the existence of such Bank's obligations hereunder and other
commitments of this type, then from time to time the relevant Fund(s) or
Portfolio(s), as the case may be, shall pay to such Bank an amount equal to such
amount or amounts as will compensate such Bank or such controlling entity, as
the case may be, for such increased capital requirement within ten (10) Banking
Days upon presentation of a certificate of such Bank setting forth the amount or
amounts and the Bank's calculation thereof, which certificate shall be
conclusive in the absence of manifest error. The determination of any amount or
amounts to be paid under this Section 5.6 shall be based upon any reasonable
averaging, attribution and allocation methods. In this connection, the relevant
Bank shall allocate such amount or amounts among its customers in good faith to
which such Bank has made loans of the type covered hereby and on an equitable
basis. A certificate of a Bank setting forth the amount or amounts as shall be
necessary to compensate the Bank and a calculation of such amount or amounts as
specified in this Section 5.6 shall be delivered to such Fund or Portfolio and
shall be conclusive in the absence of manifest error.
20
5.7 Additional Provisions with respect to Federal Funds Rate
Loan. The selection by a Fund or Portfolio of the Federal Funds Rate and the
maintenance of advances at such rate shall be subject to the following
additional terms and conditions:
(a) If, after a Fund or Portfolio has elected to borrow or
maintain any Loan at the Federal Funds Rate, the Agent notifies such
Fund or Portfolio that reasonable means do not exist for the Agent to
determine the Federal Funds Rate, as determined by the Agent in its
sole discretion, then the principal of the Loan subject to the Federal
Funds Rate shall accrue or shall continue to accrue interest at the
Reference Rate.
(b) If any treaty, statute, regulation or interpretation
thereof, or any directive, guideline, or other requirement of a central
bank or fiscal authority (whether or not having the force of law) shall
prohibit the maintenance of any Loan subject to the Federal Funds Rate,
then on and as of the date the prohibition becomes effective, the
principal subject to that prohibition shall accrue or shall continue to
accrue interest at the Reference Rate.
6. WARRANTIES. To induce the Banks and the Agent to enter into this
Agreement, grant the Commitments and to make the Loans, each Fund hereby
warrants with respect to itself and, as may be relevant with respect to a Fund
comprised of Portfolios, its respective Portfolios that:
6.1 Existence. It is an open-end, management investment company
within the meaning of the Act and is duly organized, validly existing and in
good standing under the laws of the state of its organization. It is in good
standing and is duly qualified to do business in each state where, because of
the nature of its respective activities or properties, such qualification is
required, except where the failure to be so qualified would not have a Material
Adverse Effect. If it is a Fund comprised of Portfolios, each of its Portfolios
is a series of shares of beneficial interest in, or common stock of, such Fund
(which shares have been and will be duly authorized, validly issued, fully paid
and non-assessable by such Fund) and legally constitutes a fund or portfolio
permitted to be marketed to investors pursuant to the provisions of the Act.
6.2 Authorization. It is duly authorized to execute and
deliver this Agreement and its Notes and is and, so long as this Agreement shall
remain in effect with respect to it, will continue to be duly authorized to
borrow monies hereunder on its own behalf or, if it is a Fund comprised of one
or more Portfolios, on behalf of each such Portfolio, and to perform its
obligations under this Agreement and its Notes. The execution, delivery and
performance by it of this Agreement and its Notes and the effecting of its
Borrowings hereunder on its own behalf or, if it is a Fund comprised of
Portfolios, on behalf of its respective Portfolios, do not and will not require
any consent or approval of, or registration with, any governmental agency or
authority.
21
6.3 No Conflicts. The execution, delivery and performance by
it of this Agreement and its Notes do not and, so long as this Agreement shall
remain in effect with respect to it, will not (i) conflict with any provision of
law, (ii) conflict with its constituent documents or, as applicable, its Trust
Agreement, (iii) conflict with any agreement binding upon it, (iv) conflict with
either its most recent prospectus or its most recent statement of additional
information, (v) conflict with any court or administrative order or decree
applicable to it or (vi) require, or result in, the creation or imposition of
any Lien on any of its assets.
6.4 Validity and Binding Effect. This Agreement is, and its
Notes when duly executed and delivered will be, a legal, valid and binding
obligation of such Fund or Portfolio, enforceable against it in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, receivership, fraudulent conveyance, fraudulent transfer,
moratorium or other similar laws of general application affecting the
enforcement of creditors' rights or by general principles of equity limiting the
availability of equitable remedies. The claims of the Banks under its Notes for
Borrowings hereunder will rank at least pari passu with the claims of all its
other unsecured creditors, except those whose claims are preferred solely by any
bankruptcy, insolvency, liquidation or other similar laws of general
application.
6.5 No Default. It is not in default under any agreement or
instrument to which it is a party or by which any of its respective properties
or assets is bound or affected, which default might have a Material Adverse
Effect. To the best of the Fund's knowledge, no Event of Default or Unmatured
Event of Default with respect to it or, if it is comprised of Portfolios, its
Portfolios, has occurred and is continuing.
6.6 Financial Statements. Its most recent audited Statement of
Assets and Liabilities and its most recent semi-annual asset statement, copies
of which have been or will be furnished to the Agent and the Banks, have been
prepared in conformity with GAAP applied on a basis consistent with that of the
preceding Fiscal Year or period and present fairly its financial condition as at
such dates and the results of its operations for the periods then ended, subject
(in the case of the interim financial statement) to year-end audit adjustments.
Since the date of its most recent Statement of Assets and Liabilities and such
semi-annual asset statement, there has been no material adverse change in such
financial condition or, if it is comprised of Portfolios, any of its Portfolios,
except for fluctuations in value of its assets or the assets of such Portfolios
due to market conditions and shareholder purchases and redemptions.
6.7 Litigation. No claims, litigation, arbitration proceedings
or governmental proceedings are pending or, to the best of its knowledge,
threatened against or are affecting it or, if it is comprised of Portfolios, its
Portfolios, the results of which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect, except those referred to in a
schedule furnished to the Agent and the Banks contemporaneously herewith and
attached hereto as Exhibit D. Other than any liability incident to such claims,
litigation or proceedings or provided for or disclosed in the
22
financial statements referred to in Section 6.6 or listed on Exhibit E, neither
such Fund nor any of its Portfolios, in the case of a Fund comprised of
Portfolios, to the best of its knowledge, has any contingent liabilities which
are material to it other than those incurred in the ordinary course of business.
6.8 Liens. None of the property, revenues or assets of such
Fund or any of its Portfolios, in the case of a Fund comprised of Portfolios, is
subject to any Lien, except (i) Liens in favor of the Agent, if any, (ii) Liens
for current Taxes not delinquent or Taxes being contested in good faith and by
appropriate proceedings and as to which such reserves or other appropriate
provisions as may be required by GAAP are being maintained, (iii) Liens as are
necessary in connection with a secured letter of credit opened by such Fund or
Portfolio in connection with the Fund's or the Portfolio's trustees/directors'
and officers' errors and omissions liability insurance policy, (iv) Liens in
connection with advances of cash or securities made, or in connection with any
taxes, charges, expenses, assessments, claims or liabilities incurred, by a
Fund's or Portfolio's custodian and (v) Liens in connection with the payment of
initial and variation margin in connection with authorized futures and options
transactions and collateral arrangements with respect to options, futures
contracts, options on futures contracts, when-issued or delayed delivery
securities or other authorized investments or portfolio management techniques.
6.9 Partnerships. Such Fund or Portfolio is not a partner or
joint venturer in any partnership or joint venture.
6.10 Purpose. The proceeds of the Loans will be used by such
Fund or, if it is comprised of Portfolios, by its Portfolios, as may be
designated in the relevant Borrowing Certificate, for short-term liquidity and
other temporary emergency purposes, which purposes are permitted by such Fund's
or Portfolio's prospectus and statement of additional information and the Act.
Neither the making of any Loan nor the use of the proceeds thereof will violate
or be inconsistent with the provisions of Federal Reserve Board Regulations G,
T, U or X. Each such Fund acknowledges that Loans made to it or to it on behalf
of its Portfolios, as the case may be, may be deemed by the Federal Reserve
Board to be "purpose loans" under Regulation U because of such Fund's status as
an investment company (or the functional equivalent thereof).
6.11 Compliance. Such Fund or Portfolio is in compliance with
all statutes and governmental rules and regulations, consents, orders and
decrees applicable to it, including, without limitation, the Act, other than any
statutes, governmental rules and regulations the non-compliance with which will
not have a Material Adverse Effect on such Fund's or Portfolio's operations,
assets or financial condition.
6.12 Pension and Welfare Plans. Such Fund or Portfolio has not
established or maintained, nor is it liable under or in respect of, any Plan.
23
6.13 Taxes. Such Fund or Portfolio has filed all tax returns
that are required to have been filed and has paid, or made adequate provisions
for the payment of, all of its Taxes that are due and payable, except such
Taxes, if any, as are being contested in good faith and by appropriate
proceedings and as to which such reserves or other appropriate provisions as may
be required by GAAP have been maintained. Such Fund or Portfolio is not aware of
any proposed assessment against it for additional Taxes (or any basis for any
such assessment) which might be material in amount to it. Such Fund or Portfolio
has complied with all requirements of the Code applicable to regulated
investment companies so as to be relieved of federal income tax on net
investment income and net capital gains distributed to shareholders of the Fund
or Portfolio.
6.14 Subsidiaries; Investments. Such Fund or Portfolio has no
Subsidiaries and no equity investment or interest in any other Person other than
portfolio securities which may have been acquired in the ordinary course of
business.
6.15 Full Disclosure. No representation or warranty contained
in this Agreement or in any other document or instrument furnished to the Agent
and the Banks in connection herewith contains any untrue statement of any
material fact as of the date when made or omits to state any material fact
necessary to make the statements herein or therein not misleading as of the date
when made.
6.16 Investment Policies. The assets of such Fund or Portfolio
are being invested in accordance with the investment policies and restrictions
set forth in each of its most recent prospectus and its most recent statement of
additional information, except for incidents of inadvertent non-compliance
therewith which will not, individually or in the aggregate, have a Material
Adverse Effect on the Fund's or Portfolio's business or financial condition.
7. COVENANTS. From the date of this Agreement and thereafter until
the expiration or termination of the Commitments and until its Note or Notes and
other liabilities are paid in full, each Fund agrees with respect to itself and,
if it is comprised of Portfolios, its Portfolios, that, unless the Majority
Banks shall otherwise expressly consent in writing:
7.1 Financial Statements and Other Reports. Subject to the
last sentence of this Section 7.1, to furnish to the Agent, with sufficient
copies for each Bank:
(a) Audit Reports. As soon as available and in any
event within 60 days after each of its Fiscal Years, a copy of its
annual audited Statement of Assets and Liabilities, including a
statement of investments, prepared in conformity with GAAP and
certified by an independent certified public accountant who shall be
satisfactory to the Majority Banks, together with a certificate from
such accountant (i) acknowledging to the Agent such accountant's
understanding that the Agent and the Banks are relying on such
Statement of
24
Assets and Liabilities, (ii) containing a computation of, and showing
compliance with, the financial ratio contained in Section 7.13 and
(iii) to the effect that, in making the examination necessary for the
signing of such Statement of Assets and Liabilities, such accountant
has not become aware of any Event of Default or Unmatured Event of
Default that has occurred and is continuing, or if such accountant has
become aware of any such event, describing it and the steps, if any,
being taken to cure it;
(b) Semi-Annual Asset Statements. Within 60 days after the
end of the first six months of its Fiscal Year, a copy of its published
semi-annual asset statement, prepared in conformity with GAAP;
(c) Borrowing Base Certificate. In addition to each
Borrowing Certificate provided pursuant to Section 2.3, not later than
7 days after the end of each calendar quarter, or at any other time
reasonably requested by the Agent, a certificate of a designated
officer of its Adviser, acting on its behalf, in the form set forth as
Exhibit F hereto (a "Borrowing Base Certificate"), certifying, as of
the end of such quarter, as to the current Borrowing Base of it or, if
it is comprised of Portfolios, each of its Portfolios to which Loans
were made during such quarter or are outstanding at the end of such
quarter, and showing all calculations used in determining such amounts;
(d) Officer's Certificate. Within 15 days after the end of
each calendar quarter during which a Loan was outstanding at the end of
such quarter, a certificate of a designated officer of the borrowing
Fund's or Portfolio's Adviser, acting on such Fund's or Portfolio's
behalf, certifying to the effect that, to the best of such Adviser's
knowledge, no Event of Default or Unmatured Event of Default has
occurred and is continuing and containing a computation of, and showing
compliance with, the financial ratio contained in Section 7.13;
(e) Securities and Exchange Commission and Other Reports.
Copies of each filing and report made by it with or to any securities
exchange or the Securities and Exchange Commission (other than any
filing or report not sent to investors) and of each communication
(other than marketing and other non-financial communications sent in
the ordinary course of business) from it to investors generally,
promptly upon the filing or making thereof; and
(f) Requested Information. Promptly from time to time such
other reports or information as the Agent or any Bank may reasonably
request, including, without limitation, those required pursuant to
Section 8.5.
Notwithstanding the foregoing, such Fund or Portfolio may fulfill its
obligations to the Agent and the Banks under paragraphs (a), (b) and (e) of this
Section 7.1 by providing to the Agent (with copies sufficient for each Bank)
(without duplication) each report, statement, mailing and distribution (other
than transaction confirmations and
25
dividend statements) sent to shareholders of such Fund or Portfolio, including
all statements of additional information, for which the Agent and the Banks
shall be deemed to have made specific requests.
7.2 Notices. Notify the Agent in writing of any of the
following immediately upon learning of the occurrence thereof, describing the
same and, if applicable, stating the steps being taken by the Person(s) affected
with respect thereto:
(a) Default. The occurrence of an Event of Default or an
Unmatured Event of Default;
(b) Litigation. The institution of any litigation,
arbitration proceeding or governmental proceeding which, if adversely
determined, could reasonably be expected to have a Material Adverse
Effect;
(c) Judgment. The entry of any judgment or decree against
such Fund or Portfolio if the aggregate amount of all judgments and
decrees then outstanding against such Fund or Portfolio exceeds
$1,000,000 or, if less, 1% of the Fund's or Portfolio's assets, after
deducting (i) the amount with respect to which such Fund or Portfolio
is insured and with respect to which the insurer has assumed
responsibility in writing, and (ii) the amount for which such Fund or
Portfolio is otherwise indemnified if the terms of such indemnification
and the Person providing such indemnification are satisfactory to the
Majority Banks;
(d) Pricing Service Information. The occurrence of any
change in the pricing services utilized by such Fund or Portfolio as
referred to in the definition of "Total Assets";
(e) Name Changes. The occurrence of a change of name
(whether of its legal name or a "d/b/a" designation) of such Fund or,
if it is comprised of Portfolios, any of its Portfolios. The Fund or,
if it is a Fund comprised of Portfolios, the Fund, on behalf of the
affected Portfolio(s), shall promptly execute and deliver to each Bank
a new Note executed in its new name, together with such other documents
in connection therewith as the Bank shall reasonably request;
(f) Other Changes. Upon becoming aware of any potential
change of such Fund's or Portfolio's Adviser or distributor or the
appointment of any sub-adviser or any Person acting in a similar
capacity to an Adviser (and in any event not later than 30 days prior
to the time as the board of trustees or directors of such Fund is to
consider approval of such change or appointment or otherwise determines
to recommend such change or appointment (if necessary) to its
shareholders for their approval) and, not later than 30 days prior to
the occurrence of any change of such Fund's or Portfolio's custodian,
independent accountant, sponsor or administrator, notice thereof;
provided that a mailing to
26
shareholders with respect to any of the foregoing shall not be deemed
to be sufficient notice hereunder; and provided further, that if, in
the good faith judgment of the Majority Banks such proposed change will
result or has resulted in a change in the Majority Banks' analysis of
the creditworthiness of such Fund or Portfolio or, in the case of any
such proposed change of such Fund's or Portfolio's Adviser or if a new
Adviser, any sub-adviser or any other Person acting in a similar
capacity to an Adviser is appointed, such Adviser, new Adviser,
sub-adviser or other Person fails to provide the Banks with a letter in
the form of Exhibit H, then the Banks may terminate their Commitments
to lend to such Fund or Portfolio hereunder upon giving 30 days' notice
to such Fund or Portfolio, and at the end of such 30-day period, all
Loans outstanding to such Fund or Portfolio shall become immediately
due and payable; and
(g) Other Events. The occurrence of such other events
as the Agent may from time to time reasonably specify.
7.3 Existence. Except as specified in Section 7.12(a), maintain
and preserve its existence as a registered investment company and, if it is
comprised of Portfolios, the respective existence of each Portfolio as a
"series" within the meaning of the Act, and maintain and preserve all rights,
privileges, licenses, copyrights, trademarks, trade names, franchises and other
authority to the extent material and necessary for the conduct of its business
in the ordinary course as conducted from time to time, unless such Fund or
Portfolio has no Loans outstanding and has irrevocably notified the Agent that
it shall not request any Loans hereunder.
7.4 Nature of Business. (a) Continue in, and limit its
operations to, the business of an open-end, management investment company,
within the meaning of the Act, and (b) maintain in full force and effect at all
times all governmental licenses, registrations, permits and approvals necessary
for the continued conduct of its business, including, without limitation, its
registration with the Securities and Exchange Commission under the Act as an
open-end diversified investment company, unless in the case of this clause (b)
only the failure to do so would not have a Material Adverse Effect.
7.5 Books, Records and Access. Maintain complete and accurate
books and records in which full and correct entries in conformity with GAAP
shall be made of all dealings and transactions in relation to such Fund's or
Portfolio's business and activities; upon reasonable notice, permit access by
the Agent and the Banks to its books and records during normal business hours
and permit the Agent or a Bank, as the case may be, to make copies of such books
and records; provided, however, that neither the Agent nor the Banks shall have
access to the shareholder lists of the Fund and, as the case may be, its
Portfolios.
7.6 Insurance. Maintain in full force and effect insurance to
such extent and against such liabilities as is commonly maintained by companies
similarly situated, including, but not limited to (i) such fidelity bond
coverage as shall be required
27
by Rule 17g-1 promulgated under the Act or any similar or successor provision
and (ii) errors and omissions, director and officer liability, and other
insurance against such risks and in such amounts (and with such co-insurance and
deductibles) as is usually carried by other companies of established reputation
engaged in the same or similar businesses and similarly situated.
7.7 Dividends. Not declare or pay any dividends, except for
(i) dividends not in excess of such Fund's or Portfolio's undistributed net
investment income, net short-term capital gains and net gains from foreign
currency transactions; (ii) annual dividends not in excess of such Fund's or
Portfolio's net realized capital gains for each year in respect of which such
annual dividend is declared or paid; and (iii) any other dividends necessary to
reduce or eliminate any liability of the Fund or the Portfolio for federal,
state, local or foreign income or excise taxes; provided, however, that
dividends declared in good faith, but later recharacterized as a return of
capital due to foreign currency transactions or other unforeseeable events,
shall not be deemed in violation of this section.
7.8 Investment Policies and Restrictions.
(a) Without prior written notice to the Agent of at least 30
days (which notice the Agent shall communicate to the Banks promptly following
the receipt thereof), rescind, amend or modify any investment policy described
as "fundamental" in any prospectus or any registration statement(s) that may be
on file with the Securities and Exchange Commission with respect thereto
(collectively herein, a "proposed change"). If, in the judgment of the Majority
Banks, such proposed change will result in a change in such Banks' analysis of
the creditworthiness of such Fund or Portfolio, and if such proposed change is
implemented with respect to such Fund or Portfolio, the Commitments to such Fund
or Portfolio shall, as of the time such fundamental change is implemented,
terminate, and all Loans outstanding from the Banks to such Fund or Portfolio,
as well as all other amounts owing to the Banks from such Fund or Portfolio,
shall thereupon become immediately due and payable.
(b) Except in the case of a "fundamental" investment policy
(which, as contemplated by subparagraph (a) above, requires prior notice),
notify the Agent within 30 days after rescinding, amending or modifying any of
the investment restrictions as set forth in Exhibit G hereto with respect to it
or, if it is comprised of Portfolios, any of its Portfolios.
(c) Any notice to the Agent pursuant to this Section 7.8
shall be given in writing pursuant to the procedures described in the last
sentence of Section 7.1.
7.9 Taxes. Pay when due all of its Taxes, unless and only to
the extent that such Taxes are being contested in good faith and by appropriate
proceedings and such Fund or Portfolio shall have set aside on its books such
reserves or other appropriate provisions therefor as may be required by GAAP.
Such Fund or Portfolio shall at all times comply with all requirements of the
Code applicable to
28
regulated investment companies, to such effect as not to be subject to federal
income taxes on net investment income and net capital gains distributed to its
shareholders.
7.10 Compliance. Comply with all statutes and governmental
rules and regulations applicable to it, including, without limitation, the Act,
except were non-compliance with any such statute, rule or regulation could not
be reasonably expected to have a Material Adverse Effect.
7.11 Pension Plans. Not enter into, or incur any liability
relating to, any Plan.
7.12 Merger, Purchase and Sale. Not:
(a) be a party to any merger or consolidation; provided, however, that
any Fund or Portfolio can merge or consolidate with any other Person in
accordance with 17 C.F.R. ss. 270.17a-8 if (i) such merger or consolidation
complies in all respects with the requirements of 17 C.F.R. ss. 270.17a-8 and
all rules promulgated in connection therewith, (ii) the surviving entity assumes
all of the obligations to the Agent and the Banks of the merging or
consolidating Funds and/or Portfolios prior to such merger or consolidation and
(iii) in the judgment of all the Banks the financial condition and investment
policies and restrictions of the surviving entity are not fundamentally
different from those of the merging or consolidating Funds and/or Portfolios
prior to such merger or consolidation;
(b) except as permitted by Section 7.12(a) and except for sales or
other dispositions of portfolio securities in the ordinary course of its
business, sell, transfer, convey, lease or otherwise dispose of all or any
substantial part of its assets; or
(c) except as permitted by Section 7.12(a), purchase or otherwise
acquire all or substantially all the assets of any Person without the review and
consent thereto of the Banks, which consent shall not be unreasonably withheld.
For purposes of this Section 7.12 only, (i) a sale, transfer,
conveyance, lease or other disposition of assets shall be deemed to be a
"substantial part" of the assets of any Fund or Portfolio only if the value of
such assets, when added to the value of all other assets sold, transferred,
conveyed, leased or otherwise disposed of by such Fund or Portfolio (other than
in the normal course of business and a redemption in kind made pursuant to 17
C.F.R. ss. 270.18f-1) during the same Fiscal Year, exceeds 15% of such Fund's or
Portfolio's Total Assets determined as of the end of the immediately preceding
Fiscal Year and (ii) a redemption in kind of securities made pursuant to 17
C.F.R. ss. 270.18f-1 shall not be deemed to be a transaction covered by this
Section 7.12.
7.13 Asset Coverage Ratio. Not at any time permit its Asset
Coverage Ratio or, if it is comprised of Portfolios, the Asset Coverage Ratio of
each of its Portfolios, to be less than 4 to 1 or such other more restrictive
ratio as may be set forth in
29
any prospectus or statement of additional information with respect to such Fund
or Portfolio.
7.14 Liens. Not create or permit to exist any Lien with respect to
any property, revenues or assets now owned or hereafter acquired, except (i)
Liens in favor of the Agent and the Banks, if any, (ii) Liens for current Taxes
not delinquent or Taxes being contested in good faith and by appropriate
proceedings and as to which such reserves or other appropriate provisions as may
be required by GAAP are being maintained, (iii) Liens as are necessary in
connection with a secured letter of credit opened by such Fund or Portfolio in
connection with the Fund's or the Portfolio's trustees/directors' errors and
omissions liability insurance policy and (iv) Liens in connection with futures
and options transactions and collateral arrangements with respect to options,
futures contracts, options on futures contracts, when-issued or delayed delivery
securities or other investments or portfolio management techniques authorized by
its prospectus..
7.15 Guaranties. Not become or be a guarantor or surety of, or
otherwise become or be responsible in any manner (whether by agreement to
purchase any obligations, stock, assets, goods or services, or to supply or
advance any funds, assets, goods or services, or otherwise) with respect to, any
undertaking of any other Person, except for the endorsement, in the ordinary
course of collection, of instruments payable to it or its order.
7.16 Other Agreements. Not enter into any agreement containing
any provision that would be violated or breached by such Fund's or Portfolio's
performance of its obligations hereunder or under any instrument or document
delivered or to be delivered by such Fund or Portfolio hereunder or in
connection herewith.
7.17 Transactions with Related Parties. Not enter into or be a
party to any transaction or arrangement, including, without limitation, the
purchase, sale, lease or exchange of property or the rendering of any service,
with any Related Party, except in the ordinary course of and pursuant to the
reasonable requirements of such Fund's or Portfolio's business and upon fair and
reasonable terms no less favorable to such Fund or Portfolio than would be
obtainable in a comparable arm's-length transaction with a Person not a Related
Party; provided, however, that a transaction or arrangement that does not
violate the Act and the regulations of the Securities and Exchange Commission
thereunder shall be deemed to be in compliance with this Section 7.17.
7.18 Payment of Management Fees. At any time that (x) an Event
of Default or an Unmatured Event of Default shall have occurred and be
continuing with respect to such Fund or Portfolio and (y) Loans are outstanding
with respect to such Fund or Portfolio, not pay, or cause to be paid, any
management or advisory fees of any type in respect of such Fund or Portfolio to
its Adviser, whether pursuant to the terms of an investment advisory agreement
or not; provided, however, that notwithstanding the
30
foregoing, such Fund or Portfolio shall not be prohibited to record on its
financial statement accruals with respect to such management or advisory fees.
7.19 Other Indebtedness. Not incur or permit to exist any
Indebtedness, other than (i) the Loans, (ii) other Indebtedness payable to the
Banks and (iii) reverse repurchase transactions in an amount not exceeding that
permitted by the Fund's or Portfolio's investment restrictions.
7.20 Changes to Trust Agreement, etc. Not make or permit to be
made any material changes to its Trust Agreement or constituent documents, as
the case may be, without the prior written consent of the Majority Banks.
7.21 Violation of Investment Restrictions, etc. Not violate or
take any action which would result in a violation of any of the investment
restrictions or fundamental investment policies of such Fund or the Portfolios
of such Fund as from time to time in effect, except for such inadvertent
violations as would not, individually or in the aggregate, have a Material
Adverse Effect upon the financial condition or business of such Fund or
Portfolio.
7.22 Proceeds of Loans. To utilize the proceeds of each Loan
made to it in strict accordance with the designated usage for such Loan as set
forth in the Borrowing Certificate with respect to such Loan.
8. CONDITIONS PRECEDENT TO ALL LOANS. The obligation of the Banks to
make any Loan to a Fund or, in the case of a Fund comprised of Portfolios, a
Portfolio, or, in the case of Section 2.4, to continue or convert any Eurodollar
Loan to any Fund or Portfolio into a subsequent Interest Period, is subject to
the satisfaction of each of the following conditions precedent:
8.1 Notice. The Agent shall have received timely notice of
such Loan in accordance with Section 2.3 or 2.4, as applicable.
8.2 Default. Before and after giving effect to such Loan, no
Event of Default or Unmatured Event of Default shall have occurred and be
continuing with respect to such Fund or Portfolio.
8.3 Warranties. Before and after giving effect to such Loan,
the warranties in Section 6 (other than the warranty in Section 6.7) shall be
true and correct as though made on the date of such Loan, except for such
changes as are specifically permitted hereunder.
8.4 Certification. Each request for a Loan shall be deemed to
be a certification that the conditions precedent set out in Sections 8.2 and 8.3
have been satisfied.
31
8.5 Form U-1. Each Fund and, in the case of a Fund comprised
of Portfolios, each Portfolio of such Fund, shall have executed and delivered to
the Agent a Form U-1 required under Regulation U of the Federal Reserve Board,
in form and substance satisfactory to the Agent (including, without limitation,
disclosures on such form as if Loans to be made to such Fund or Portfolio were
"purpose loans" secured indirectly by margin stock, all as more fully set forth
in Regulation U), and shall have executed, delivered and/or provided any and all
other certifications and/or information reasonably requested by the Agent in
connection therewith, including updates of information required in connection
therewith.
8.6 Borrowing Certificate. The Agent shall have received a
Borrowing request from such Fund or, in the case of a Fund comprised of
Portfolios, the relevant Portfolio as contemplated by Section 2.3.
8.7 Minimum Net Asset Value. The Net Asset Value of such Fund
or Portfolio at the time of a Borrowing request shall be at least $10,000,000.
9. CONDITIONS PRECEDENT TO INITIAL LOANS. This Agreement shall take
effect from the later of February 20, 1998 and the first day that the Agent
shall have received counterparts hereof signed by each of the parties hereto.
The obligation of the Banks to make the initial Loans hereunder is subject to
the satisfaction of the conditions precedent, in addition to the applicable
conditions precedent set forth in Section 8 above, each Fund or Portfolio, as
the case may be, shall have delivered to the Agent all of the following, each
duly executed and dated the date of the initial Loan or such earlier date as is
satisfactory to the Agent and in form and substance satisfactory to the Agent
and its counsel:
9.1 Note. Its Notes in favor of each Bank.
9.2 Resolutions. A copy, duly certified by the secretary or an
assistant secretary of such Fund or Portfolio, of (i) the resolutions of such
Fund's or Portfolio's trustees or directors authorizing or ratifying the
execution and delivery of this Agreement and such Fund's Notes or, in the case
of a Fund comprised of one or more Portfolios, the Notes of each such Portfolio,
and authorizing the Borrowings hereunder, (ii) all documents evidencing other
necessary trust or corporate action, as the case may be, and (iii) all approvals
or consents, if any, with respect to this Agreement and the aforesaid Note(s).
9.3 Incumbency Certificate. A certificate of the secretary or
an assistant secretary of such Fund certifying the names of the Fund's officers
and/or other persons authorized to sign this Agreement, the Notes of such Fund
or, as appropriate, such Fund's Portfolio(s), and all other documents or
certificates to be delivered hereunder, together with the true signatures of
such officers.
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9.4 Opinion. An opinion of counsel to such Fund or Portfolio,
addressed to the Agent and the Banks, substantially in the form of Exhibit I.
9.5 Net Asset Value Certificate. A certificate of the net
asset value of such Fund and, if the Fund is comprised of Portfolios, the
Portfolio on whose behalf the Loan is being made.
9.6 Consent of Investment Adviser. A letter from the Fund's or
Portfolio's Adviser addressed to the Agent and the Banks, substantially in the
form of Exhibit H.
10. ADDITION OF NEW PARTIES.
10.1 New Parties. Subject to the prior consent of each of the
Banks, which may be granted or withheld in its sole discretion, one or more
Funds or Portfolios may become parties hereunder by delivering to the Agent a
notice in the form of Exhibit C and such other documentation and financial
information with respect to such Fund or Portfolio as the Banks may request.
11. EVENTS OF DEFAULT AND REMEDIES.
11.1 Events of Default. Each of the following shall constitute
an Event of Default with respect to a Fund or Portfolio, as the case may be,
under this Agreement (it being understood that an Event of Default with respect
to a Fund or Portfolio, as the case may be, shall not constitute an Event of
Default with respect to any other Fund or other Portfolio of that Fund):
(a) Non-Payment. Default in the payment when due of any
principal of, or interest on, any Loan made to such Fund or Portfolio,
as the case may be, or any fee hereunder payable by such Fund or
Portfolio, as the case may be.
(b) Non-Payment of Other Indebtedness. Default in the payment
when due, whether by acceleration or otherwise (subject to any
applicable grace period), of any Indebtedness of, or guaranteed by,
such Fund or Portfolio, as the case may be, in excess of 5% of such
Fund's or Portfolio's, as the case may be, then respective total Net
Asset Value.
(c) Acceleration of Other Indebtedness. Any event or
condition shall occur that results in the acceleration of the maturity
of any Indebtedness of, or guaranteed by, such Fund or Portfolio, as
the case may be, or enables the holder or holders of such other
Indebtedness or any trustee or agent for such holders (any required
notice of default having been given and any
33
applicable grace period having expired) to accelerate the maturity of
such other Indebtedness in excess of 5% of such Fund's or Portfolio's,
as the case may be, then respective total Net Asset Value.
(d) Other Obligations. Default in the payment when due,
whether by acceleration or otherwise, or in the performance or
observance (subject to applicable grace periods, if any) of (i) any
obligation or agreement of such Fund or Portfolio, as the case may be,
to or with the Agent or any Bank (other than any obligation or
agreement of such Fund or Portfolio hereunder or under such Fund's or
Portfolio's Note), or (ii) any material obligation or agreement of such
Fund or Portfolio, as the case may be, to or with any other Person,
except only to the extent that the existence of any such default is
being contested by such Fund or Portfolio, as the case may be, in good
faith and by appropriate proceedings and such Fund or Portfolio, as the
case may be, shall have set aside on its books such reserves or other
appropriate provisions therefor as may be required by GAAP.
(e) Insolvency. The Fund or Portfolio, as the case may be,
becomes insolvent, or generally fails to pay, or admits in writing its
inability to pay, its debts as they mature, or applies for, consents to
or acquiesces in, the appointment of a trustee, receiver or other
custodian for such Fund or Portfolio, as the case may be, or for a
substantial part of its property, or makes a general assignment for the
benefit of creditors; or, in the absence of such application, consent
or acquiescence, a trustee, receiver or other custodian is appointed
for such Fund or Portfolio, as the case may be, or for a substantial
part of the property of such Fund or Portfolio, as the case may be, and
is not discharged within 30 days; or any bankruptcy, reorganization,
debt arrangement or other proceeding under any bankruptcy or insolvency
law, or any dissolution or liquidation proceeding, is instituted by or
against such Fund or Portfolio, as the case may be, and, if instituted
against such Fund or Portfolio, as the case may be, is consented to or
acquiesced in by such Fund or Portfolio, as the case may be, or remains
for 30 days undismissed; or any warrant of attachment or similar legal
process is issued against any substantial part of the property of such
Fund or Portfolio, as the case may be, which is not released within 30
days of service.
(f) Agreements. Such Fund or Portfolio, as the case may be,
shall (i) default in the performance of its agreement under Section
7.13 or (ii) default in the performance of its other agreements herein
set forth (and not constituting an Event of Default under any of the
other subsections of this Section 11.1), and such default shall
continue for 30 days (or 3 days in the case of such Fund's or
Portfolio's, as the case may be, agreement contained in the last
sentence of the definition of "Total Assets") after notice thereof to
such Fund or Portfolio, as the case may be, from the Agent or a Bank.
34
(g) Warranty. Any warranty made by such Fund or Portfolio, as
the case may be, herein, or in any schedule, statement, report, notice,
certificate or other writing furnished by such Fund or Portfolio, as
the case may be, on or as of the date as of which the facts set forth
therein are stated or certified, is untrue or misleading in any
material respect when made or deemed made; or any certification made or
deemed made by such Fund or Portfolio, as the case may be, to the Agent
and the Banks is untrue or misleading in any material respect on or as
of the date made or deemed made.
(h) Litigation. There shall be entered against such Fund or
Portfolio, as the case may be, one or more judgments or decrees in
excess of $1,000,000.00 in the aggregate at any one time outstanding,
excluding those judgments or decrees (i) that shall have been stayed or
discharged less than 30 calendar days from the entry thereof and (ii)
those judgments and decrees for and to the extent which such Fund or
Portfolio, as the case may be, is insured and with respect to which the
insurer has assumed responsibility in writing or for and to the extent
which such Fund or Portfolio, as the case may be, is otherwise
indemnified if the terms of such indemnification and the Person
providing such indemnification are satisfactory to the Majority Banks.
(i) Material Adverse Change. The Majority Banks shall have
determined in good faith that a Material Adverse Change has occurred.
(j) Investment Company Act. Such Fund or Portfolio, as the
case may be, shall no longer be in compliance with the Act after giving
effect to all notice and cure periods thereunder where such
non-compliance or lack of good standing would have a Material Adverse
Effect upon the financial condition or business of such Fund or
Portfolio, as the case may be.
(k) Investment Advisor; Custodian. Such Fund's or
Portfolio's, as the case may be, Adviser shall cease to be an
investment advisor of such Fund, or State Street Bank and Trust Company
shall cease to be the custodian of such Fund's or Portfolio's assets;
provided, however, that, it shall be an Event of Default if, in the
case of Xxxxxxxx Europe Fund only, State Street Bank and Trust Company
shall cease to be the custodian of its domestic assets or The Chase
Manhattan Bank shall cease to be the sub-custodian of its foreign
assets.
(l) Investment Restrictions; Investment Policies. Such Fund
or Portfolio, as the case may be, shall violate or take any action that
would result in a violation of any of the investment restrictions or
fundamental investment policies of such Fund or Portfolio as from time
to time in effect where such violation would have a Material Adverse
Effect upon such Fund or Portfolio.
11.2 Remedies. If any Event of Default described in Section 11.1
shall have occurred and be continuing, the Agent may, and following the
direction of the
35
Majority Banks shall, declare the Commitments to be terminated with respect to
the applicable Fund or Portfolio, as the case may be, and such Fund's or
Portfolio's, as the case may be, obligations under its Notes to be due and
payable, whereupon the Commitments shall immediately terminate with respect to
such Fund or Portfolio, as the case may be, and such Fund's or Portfolio's, as
the case may be, Notes shall become immediately due and payable, all without
advance notice of any kind (except that if an event described in Section 11.1(e)
occurs, the Commitments shall immediately terminate with respect to such Fund or
Portfolio, as the case may be, and the obligations under the Notes with respect
to such Fund or Portfolio, as the case may be, shall become immediately due and
payable without declaration or advance notice of any kind). The Agent shall
promptly advise such Fund or Portfolio, as the case may be, of any such
declaration, but failure to do so shall not impair the effect of such
declaration. If an Event of Default shall have occurred, the Agent may exercise
on behalf of itself and the Banks all rights and remedies available to it and
the Banks against such Fund or Portfolio under the Credit Documents or
applicable law.
12. THE AGENT
12.1 Appointment and Authorization. Each Bank hereby irrevocably
(subject to Section 12.9) appoints, designates and authorizes the Agent to take
such action on its behalf under the provisions of this Agreement and each other
Credit Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Credit
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Credit Document, the Agent shall not have any duties
or responsibilities, except those expressly set forth herein, nor shall the
Agent have or be deemed to have any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Credit Document or
otherwise exist against the Agent.
12.2 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Credit Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
12.3 Liability of Agent. None of the Agent-Related Persons shall
(i) be liable to the Banks for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Credit Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct) or (ii) be responsible in any manner to any of the Banks for
any recital, statement, representation or warranty made by a Fund or Portfolio
or any officer or agent thereof contained in this Agreement or in any other
Credit Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in
36
connection with, this Agreement or any other Credit Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Credit Document, or for any failure of a Fund or Portfolio or any
other party to any Credit Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Bank to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in or conditions of this Agreement or any other Credit
Document or to inspect the properties, books or records of a Fund or Portfolio.
12.4 Reliance by Agent. (a) The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement, or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including counsel to
the Funds), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Credit Document unless it shall first receive such
advice or concurrence of the Majority Banks as it deems appropriate, and if it
so requests, it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action (other than liability or expense
arising from its gross negligence or willful misconduct). The Agent shall in all
cases be fully protected from any claim by any Bank in acting, or in refraining
from acting, under this Agreement or any other Credit Document in accordance
with a request or consent of the Majority Banks and such request, and any action
taken or failure to act pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 9, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted, or be satisfied with each
document or other matter either sent by the Agent to such Bank for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to,
approved by, acceptable or satisfactory to the Bank.
12.5 Notice of Event of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Event of Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to the Agent for the account of the Banks, unless the Agent shall have
received written notice from a Bank or a Fund referring to this Agreement,
describing such Event of Default and stating that such notice is a "notice of
default". The Agent will notify the Banks of its receipt of any such notice. The
Agent shall take such action with respect to such Event of Default as may be
requested by the Majority Banks in accordance with Section 11.2; provided,
however, that unless and until the Agent has received any such request, the
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with
37
respect to such Event of Default as it shall deem advisable or in the best
interest of the Banks.
12.6 Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Funds and the Portfolios, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition, and creditworthiness of the
Funds and the Portfolios, and all applicable bank regulatory laws relating to
the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Funds and the Portfolios hereunder.
Each Bank also represents that it will, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Credit Documents and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition, and creditworthiness of the Funds and the Portfolios.
Except for notices, reports and other documents expressly herein required to be
furnished to the Banks by the Agent, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition, or creditworthiness of the Funds and the Portfolios which may come
into the possession of any of the Agent-Related Persons.
12.7 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the Funds
and without limiting the obligation of the Funds to do so), pro rata, from and
against any and all Indemnified Liabilities; provided, however, that no Bank
shall be liable for the payment to the Agent-Related Persons of any portion of
such Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct. Without limitation of the foregoing, each Bank
shall reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Credit Document, or any
document contemplated by or referred to herein, to the extent that the Agent is
not reimbursed for such expenses by or on behalf of the Funds; provided that the
obligations of the Banks to pay or reimburse BofA for Attorney Costs incurred in
the preparation and delivery of this Agreement and the other Credit Documents
delivered in connection with the Closing shall not exceed $25,000. The
undertaking in this Section shall survive the payment of all obligations
hereunder and under the Notes and the resignation or replacement of the Agent.
38
12.8 Agent in Individual Capacity. BofA and its Affiliates may
make loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Funds, the
Portfolios and their Affiliates as though BofA were not the Agent hereunder and
without notice to or consent of the Banks. The Banks acknowledge that, pursuant
to such activities, BofA or its Affiliates may receive information regarding the
Funds, the Portfolios or their Affiliates (including information that may be
subject to confidentiality obligations in favor of the Funds, the Portfolios or
their Affiliates) and acknowledge that the Agent shall be under no obligation to
provide such information to them. With respect to its Loans, BofA shall have the
same rights and powers under this Agreement as any other Bank and may exercise
the same as though it were not the Agent, and the terms "Bank" and "Banks"
include BofA in its individual capacity.
12.9 Successor Agent. The Agent may, and at the request of the
Majority Banks shall, resign as Agent upon 30 days' notice to the Banks, the
Funds and the Portfolios. If the Agent resigns under this Agreement, the
Majority Banks shall appoint from among the Banks a successor agent for the
Banks, which successor agent shall be subject to approval by the Funds and the
Portfolios. If no successor agent is appointed prior to the effective date of
the resignation of the Agent, the Agent may appoint, after consulting with the
Banks, the Funds and the Portfolios, a successor agent from among the Banks.
Upon the acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor agent, and the
retiring Agent's appointment, powers and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Section 12 and Sections 13.3 and 13.4 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor agent has accepted appointment as Agent by the date
which is 30 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective, the
Banks shall perform all of the duties of the Agent hereunder and the Funds and
Portfolios shall make any payments otherwise required to be made by them
hereunder to the Agent to the Banks directly until such time, if any, as the
Majority Banks appoint a successor agent as provided for above.
13. GENERAL.
13.1 Waiver and Amendments. No failure or delay on the part of
the Banks in the exercise of any power or right, and no course of dealing
between any Fund or Portfolio and the Banks, shall operate as a waiver of such
power or right, nor shall any single or partial exercise of any power or right
preclude other or further exercise thereof or the exercise of any other power or
right. The remedies provided for herein are cumulative and not exclusive of any
remedies which may be available to the Banks at law
39
or in equity. No notice to or demand on a Fund or Portfolio not required
hereunder or under such Fund's or Portfolio's Notes shall in any event entitle
such Fund or Portfolio to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the right of the Banks to any
other or further action in any circumstances without notice or demand. No
amendment or waiver of any provision of any Credit Document, and no consent with
respect to any departure by a Fund or Portfolio therefrom, shall be effective
unless the same shall be in writing and adopted by the Majority Banks and each
Fund and Portfolio, and then any such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; provided
that no such amendment, waiver or consent shall, unless in writing and signed by
each Bank, do any of the following:
(a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to Section 11.2),
(b) postpone or delay any date fixed by any Credit Document
for any payment of principal of or interest on the Loans or any fees or
other amounts in connection therewith,
(c) reduce the principal of or interest on any Loan,
(d) reduce any fees or other amounts payable to any of the
Bank under any Credit Document, or
(e) amend the definition of "Majority Banks" or any provision
of this Section 13.1;
and provided further, that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Majority Banks or all Banks,
as the case may be, affect the rights or duties of the Agent under any Credit
Document.
13.2 Notices. Except as otherwise expressly provided herein,
any notice hereunder to each Fund or Portfolio, the Agent or the Banks shall be
in writing (including telegraphic or telecopy communication) and shall be given
to the intended recipient at its address or telecopier number set forth on
Schedule II hereto or at such other address or telecopier number as such Person
may, by written notice, designate as its address or telecopier number for
purposes of notice hereunder. All such notices shall be deemed to be given when
transmitted by telecopier, delivered to the telegraph office, personally
delivered or, in the case of a mailed notice, when sent by registered or
certified mail, postage prepaid, in each case addressed as specified in this
Section 13.2; provided, however, that notices to the Agent under Sections 1.1
(definition of the term "Termination Date"), 2.3, 2.4, 4.2 and 4.3 shall not be
effective until actually received by the Agent.
40
13.3 Expenses. Subject to the provisions of Section 2.6, each
Fund and Portfolio shall:
(i) whether or not any Loan is made hereunder, pay or reimburse BofA
(including in its capacity as Agent) within five Banking Days after demand for
all reasonable costs and expenses incurred by BofA (including in its capacity as
Agent) in connection with the development, preparation, delivery, administration
and execution of, and any amendment, supplement, waiver or modification to (in
each case, whether or not consummated), this Agreement, any Credit Document and
any other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including
reasonable Attorney Costs incurred by BofA (including in its capacity as Agent)
with respect thereto; provided, however, that notwithstanding the foregoing, the
obligations of the Funds and Portfolios to pay or reimburse BofA for Attorney
Costs incurred in the preparation and delivery of this Agreement and the other
Credit Documents delivered in connection with the Closing shall not exceed
$25,000.
(ii) pay or reimburse the Agent, the Arranger and each Bank within five
Banking Days after demand for all costs and expenses (including reasonable
Attorney Costs) incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
any other Credit Document during the existence of an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans and including in any insolvency proceeding or
appellate proceeding).
13.4 Funds Indemnification.
(a) Subject to the provisions of Section 2.6, whether or not the
transactions contemplated hereby are consummated, the Funds and Portfolios shall
indemnify and hold the Agent-Related Persons, and each Bank and each of its
respective officers, directors, employees, counsel, agents and attorneys-in-fact
(each, an "Indemnified Person"), harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses and disbursements (including Attorney Costs) of any
kind or nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of the
Agent or replacement of any Bank) be imposed on, incurred by or asserted against
any such Person in any way relating to or arising out of this Agreement or any
document contemplated by or referred to herein, or the transactions contemplated
hereby, or any action taken or omitted by any such Person under or in connection
with any of the foregoing, including with respect to any investigation,
litigation or proceeding (including any insolvency proceeding or appellate
proceeding) related to or arising out of this Agreement or the Loans or the use
of the proceeds thereof, whether or not any Indemnified Person is a party
thereto (all the foregoing, collectively, the "Indemnified Liabilities");
provided that (i) no Fund or Portfolio shall have an obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities resulting solely from
the
41
gross negligence or willful misconduct of such Indemnified Person and (ii) each
Fund and Portfolio shall be liable only for its portion of the Indemnified
Liabilities and such Fund or Portfolio shall not be liable for any portion of
the Indemnified Liabilities of any other Fund or Portfolio. The Funds shall from
time to time notify the Agent of the manner in which the Indemnified Liabilities
are to be allocated among the Funds and Portfolios.
(b) Promptly after receipt by an Indemnified Person under subsection
(a) above of notice of the commencement of any action, such Indemnified Person
shall, if a claim in respect thereof is to be made against a Fund or Portfolio
under such subsection, promptly notify such Fund or Portfolio in writing of the
commencement thereof, but the omission so to notify such Fund or Portfolio shall
not relieve it from any liability which it may have to any Indemnified Person
otherwise than under such subsection. In case any such action shall be brought
against any Indemnified Person and it shall notify the relevant Fund or
Portfolio of the commencement thereof, the indemnifying Fund or Portfolio shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other Fund or Portfolio similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such Indemnified Person
(who shall not, except with the consent of the Indemnified Person, be counsel to
the indemnifying Fund(s) or Portfolio(s)), and, upon such assumption, the
indemnifying Fund(s) and/or Portfolio(s) shall no longer be responsible for the
Attorney Costs of counsel retained by such Indemnified Person; provided that in
no event shall any settlement or compromise of any such claims, actions or
demands be made without the consent of the Indemnified Person, the consent of
which shall not be unreasonably withheld.
(c) The agreements in this Section 13.4 shall survive payment of all
other obligations of the Funds and Portfolios hereunder and under the Notes.
13.5 Information. The Agent and the Banks agree not to
disclose without the prior consent of any Fund or Portfolio any information with
respect to such Fund or Portfolio which is furnished pursuant to this Agreement
and which is designated by or on behalf of the Fund or Portfolio as
confidential, except that the Agent or any Bank may disclose any such
information (a) as has become generally available to the public other than by
breach of this Section 13.5, (b) as may be required by law or legal process, (c)
to examiners and regulatory agencies having jurisdiction over the Agent or any
Bank and (d) to potential participants and assignees, provided that any such
participant or assignee has been made aware of this Section 13.5 and agreed in
writing to be bound by its provisions.
13.6 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
42
13.7 Law. This Agreement and the Notes shall be contracts made
under and governed by the internal laws of the State of Illinois.
13.8 Successors. (a) This Agreement shall be binding upon the
Funds, the Portfolios, the Agent and the Banks and their respective successors
and assigns and shall inure to the benefit of the Funds, the Portfolios, the
Agent and the Banks and the permitted successors and assigns of the Agent and
the Banks.
(b) None of the Agent, any Bank, any Fund or any Portfolio may
assign its rights or duties hereunder without the consent of the other parties
hereto; provided, however, that any Bank may, with the consent of the Funds and
Portfolios, which consent shall not be unreasonably withheld, at any time assign
and delegate to one or more Eligible Lenders (each an "Assignee") all, or any
ratable part of all, of the Loans, the Commitments and the other rights and
obligations of such Bank hereunder, in a minimum amount of $5,000,000; provided,
however, that the Funds and Portfolios and the Agent may continue to deal solely
and directly with such Bank in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to the Funds and Portfolios and the Agent by such Bank and
the Assignee; (ii) such Bank and its Assignee shall have delivered to the Funds
and Portfolios and the Agent an Assignment and Acceptance in the form of Exhibit
J ("Assignment and Acceptance") together with any Note or Notes subject to such
assignment; (iii) the Agent has acknowledged receipt in writing of the
Assignment and Acceptance; and (iv) the assignor Bank or the Assignee has paid
to the Agent a processing fee in the amount of $3,500. From and after the date
that the Agent notifies the assignor Bank that it has received an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Bank under
the Credit Documents, and (ii) the assignor Bank shall, to the extent that
rights and obligations hereunder and under the other Credit Documents have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Documents. A Bank may,
without the consent of any of the Funds or the Portfolios, grant a security
interest in a Note and, in connection therewith, assign its rights in such Note,
to any Federal Reserve Bank in accordance with applicable law.
(c) Any Bank may at any time sell to one or more Eligible Lenders
(each, a "Participant") participating interests in any Loans, the Commitment of
such Bank and the other interests of such Bank in any Loans, (the "Originating
Bank") under the Credit Documents; provided, however, that: (i) the Originating
Bank's obligations under this Agreement shall remain unchanged, (ii) the
Originating Bank shall remain solely responsible for the performance of such
obligations, (iii) the Funds and Portfolios and the Agent shall continue to deal
solely and directly with the Originating Bank in connection with the Originating
Bank's rights and obligations under the Credit Documents, and
43
(iv) no Bank shall transfer or grant any participating interest under which the
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, any Credit Document, except to the extent such amendment,
consent or waiver would require unanimous consent of the Banks as described in
the first proviso to Section 13.1. In the case of any such participating
interest, the Participant shall be entitled to the benefit of Sections 5.1, 5.3,
5.4, 5.5 and 13.4 as though it were also a Bank hereunder (and the Originating
Bank shall not be entitled to the benefits of such sections with respect to the
portion of any Loans in which it has sold a participating interest), and if
amounts outstanding under the Credit Documents are due and unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall be deemed to have the right of set-off
in respect of its participating interest in amounts owing under the Credit
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Bank under this Agreement.
13.9 Waiver of Jury Trial. EACH OF THE AGENT, THE BANKS AND
EACH FUND AND PORTFOLIO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (i) UNDER THIS AGREEMENT OR UNDER ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR (ii) ARISING FROM ANY BANKING
RELATIONSHIP ARISING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
13.10 Disclaimer. None of the shareholders, trustees,
officers, employees and other agents of any Fund or Portfolio shall be
personally bound by or liable for any indebtedness, liability or obligation
hereunder, under any Note or under any judgment on this Agreement or any Note
nor shall resort be had to their private property for the satisfaction of any
obligation or claim hereunder or thereunder.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
XXXX XXXXX VALUE TRUST, INC.
By: /s/ XXXXX X. XXXXXXXXX
________________________________
Title: Vice President and Treasurer
_____________________________
44
XXXX XXXXX TOTAL RETURN TRUST, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
XXXX XXXXX SPECIAL INVESTMENT
TRUST, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
XXXX XXXXX INVESTORS TRUST, INC.,
ON BEHALF OF XXXX XXXXX AMERICAN
LEADING COMPANIES TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
XXXX XXXXX INVESTORS TRUST, INC.,
ON BEHALF OF XXXX XXXXX BALANCED
TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
XXXX XXXXX GLOBAL TRUST, INC., ON
BEHALF OF XXXX XXXXX GLOBAL
GOVERNMENT TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
45
XXXX XXXXX GLOBAL TRUST, INC., ON
BEHALF OF XXXX XXXXX INTERNATIONAL
EQUITY TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
XXXX XXXXX GLOBAL TRUST, INC., ON
BEHALF OF XXXX XXXXX EMERGING MARKETS
TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
XXXX XXXXX TAX-FREE INCOME FUND,
ON BEHALF OF XXXX XXXXX MARYLAND
TAX-FREE INCOME TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
XXXX XXXXX TAX-FREE INCOME FUND,
ON BEHALF OF XXXX XXXXX PENNSYLVANIA
TAX-FREE INCOME TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
XXXX XXXXX TAX-FREE INCOME FUND,
ON BEHALF OF XXXX XXXXX TAX-FREE
INTERMEDIATE-TERM INCOME TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
46
XXXX XXXXX INCOME TRUST, INC., ON
BEHALF OF XXXX XXXXX U.S.
GOVERNMENT INTERMEDIATE-TERM
PORTFOLIO
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
XXXX XXXXX INCOME TRUST, INC., ON
BEHALF OF XXXX XXXXX INVESTMENT
GRADE INCOME PORTFOLIO
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
XXXX XXXXX INCOME TRUST, INC., ON
BEHALF OF XXXX XXXXX HIGH YIELD
PORTFOLIO
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
00
XXXXXXXX XXXXXXX XXXXX, XX
BEHALF OF XXXXXXXX VALUE
INTERNATIONAL FUND
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
XXXXXXXX CAPITAL TRUST, ON
BEHALF OF XXXXXXXX EUROPE FUND
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
XXXXXXXX CAPITAL TRUST, ON
BEHALF OF XXXXXXXX BASIC VALUE FUND
By: /s/ Xxxxx X. Xxxxxxxxx
________________________________
Title: Vice President and Treasurer
_____________________________
48
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as Agent
By: /s/ Xxxx X. Xxxxx
_________________________________
Title: Vice President
______________________________
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as a Bank
By: /s/ Xxxx X. Xxxxx
_________________________________
Title: Vice President
______________________________
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx Xxxxxxx
_________________________________
Title: Senior Vice President
______________________________
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxx Xxxxx Gualfierri
_________________________________
Title: Vice President
______________________________
49
SCHEDULE I
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
-----------------------------------------------
Bank of America National
Trust and Savings Association $ 50,000,000 33 1/3%
First Union National Bank $ 50,000,000 33 1/3%
State Street Bank and Trust Company $ 50,000,000 33 1/3%
TOTAL $150,000,000 100%
SCHEDULE II
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
FUNDS AND PORTFOLIOS:
XXXX XXXXX XXXX XXXXXX, INC.
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx, Funds Accounting
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ADDRESS TO SEND CERTIFICATES AND FINANCIAL STATEMENTS
Agency Management Services
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
DOMESTIC AND OFFSHORE LENDING OFFICE:
0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NOTICES (OTHER THAN LOAN REQUESTS AND NOTICES OF
CONVERSION/CONTINUATION):
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIRST UNION NATIONAL BANK
DOMESTIC AND OFFSHORE LENDING OFFICE:
First Union National Bank
One First Union Center
000 X. Xxxxxxx Xx., XX-0
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NOTICES (OTHER THAN LOAN REQUESTS AND NOTICES OF
CONVERSION/CONTINUATION):
First Union National Bank
One First Union Center
000 X. Xxxxxxx Xx., XX-0
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
STATE STREET BANK AND TRUST COMPANY
DOMESTIC AND OFFSHORE LENDING OFFICE:
State Street Bank and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NOTICES (OTHER THAN LOAN REQUESTS AND NOTICES OF
CONVERSION/CONTINUATION):
State Street Bank and Trust Company
0000 Xxxxxxxx Xxxxx
0xx Xxxxx, Xxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EXHIBIT A
BORROWING CERTIFICATE
Reference is made to that certain Credit Agreement, dated as of February
20, 1998 (the "Credit Agreement"), among the funds and portfolios party thereto,
the banks party thereto as lenders (the "Banks") and Bank of America National
Trust and Savings Association, as agent (the "Agent"). Capitalized terms used
herein and not otherwise defined shall have the meanings given to such terms in
the Credit Agreement. Pursuant to the terms of the Credit Agreement, the
undersigned, on behalf of and with respect to the [Name of Fund or Portfolio],
hereby represents and certifies to the Banks as follows:
1. On _______________, the undersigned, on behalf of the [Name of Fund
or Portfolio], requested that the Banks make a [type of Loan] in the principal
amount of $___________to be made on _____________ and having a tenor of
____________________.
2. The Fund or Portfolio that will use the proceeds of such Loan is
___________________.
3. The purpose for which such Loan will be used is ____________________
_______________________________________________________________________.
4. As of ____________________, the Asset Coverage Ratio of such Fund or
Portfolio is _____________________, calculated as follows:
(a) Total Assets (less the value of assets
subject to Liens)(1): _____________________
(b) minus liabilities and Indebtedness
not represented by Senior
Securities: _____________________
(c) divided by Senior Securities Rep-
resenting Indebtedness(2): _____________________
(d) equals Asset Coverage Ratio: _____________________.
5. As of _____________________, the Borrowing Base for such Fund or
--------
(1) Use immediately preceding Banking Day.
(2) For each Borrowing Certificate provided in connection with a request
for a Loan, for each Borrower, Total Assets should include the amount
of the proposed Loan.
(3) For each Borrowing Certificate provided in connection with a request
for a Loan, for each Borrower, Senior Securities Representing
Indebtedness should include the amount of the proposed Loan.
Portfolio is calculated as follows:
(a) Total Assets (less the value of assets
subject to Liens), net of liabilities
and Indebtedness not represented by
Senior Securities
$_____________________
(b) Indebtedness
$_____________________
(c) Gross Assets
[(a) plus (b)]
$_____________________
(d) Gross Borrowing Base
[25.0% of (c)] $_____________________
(e) Available Borrowing Base
[(d) minus (b)]
$_____________________
(f) Loans requested today [not to exceed (e)]
$_____________________
6. The undersigned further certifies, on behalf of the Fund or
Portfolio, that (a) the proceeds of such Loan will be utilized solely by the
Fund or Portfolio designated above and (b) no Event of Default, to the best of
its knowledge, or Unmatured Event of Default has occurred and is continuing as
of the date of this Borrowing Certificate.
Date: _____________________ __________, as investment adviser
to
[Name of Fund or Portfolio]
By: _______________________
Title: _______________________
EXHIBIT B
Non-Negotiable
PROMISSORY NOTE
$__,000,000.00 Baltimore, Maryland: as of _______ __, 199_
FOR VALUE RECEIVED, the undersigned (the "Fund") promises to pay to
___________(the "Bank"), on the Termination Date (as defined in the Credit
Agreement hereinafter referred to) the principal sum of _____________
($__,000,000.00) or, if less, the then aggregate unpaid principal amount of
Federal Funds Rate Loans and Eurodollar Loans (as such terms are defined in the
Credit Agreement) as may have been borrowed by the Fund from the Bank under the
Credit Agreement. The Fund may borrow, repay and reborrow hereunder in
accordance with the provisions of the Credit Agreement. All Federal Funds Rate
Loans and Eurodollar Loans and all payments of principal shall be recorded by
the holder in its records.
The Fund further promises to pay to the order of the Bank interest on
the aggregate unpaid principal amount hereof from time to time outstanding from
the date hereof until paid in full at the rates per annum which shall be
determined in accordance with the provisions of the Credit Agreement. Accrued
interest shall be payable on the dates specified in the Credit Agreement.
All payments of principal and interest under this Note shall be made in
lawful money of the United States of America in immediately available funds at
Bank of America National Trust and Savings Association, ABA No. 000000000,
Chicago Account Administration, Account No. 47-03421, Reference: Xxxx Xxxxx, or
at such other place as may be designated by the Bank to the Fund in writing.
This Note is the Note referred to in, and evidences indebtedness
incurred under, a Credit Agreement dated as of February 20, 1998 (herein, as it
may be amended, modified or supplemented from time to time, called the "Credit
Agreement") among the Fund, the other parties thereto and the Bank, to which
Credit Agreement reference is made for a statement of the terms and provisions
thereof, including those under which the Fund is permitted and required to make
prepayments and repayments of principal of such indebtedness and under which
such indebtedness may be declared to be immediately due and payable.
Neither the shareholders, trustees or directors, as the case may be,
officers, employees and other agents of the Fund shall be personally bound by or
liable for any
indebtedness, liability or obligation hereunder nor shall resort be had to their
private property for the satisfaction of any obligations or claim hereunder.
All parties hereto, whether as makers, endorsers or otherwise,
severally waive presentment, demand, protest and notice of dishonor in
connection with this Note.
This Note is made under and governed by the internal laws of the State
of Illinois.
Address: [NAME OF FUND]
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
By: _________________________
Title: _________________________
EXHIBIT B-1
Non-Negotiable
PROMISSORY NOTE
$__,000,000.00 Baltimore, Maryland: as of _______ __, 199_
FOR VALUE RECEIVED, the undersigned (the "Fund"), on behalf of the
Portfolio designated below ("Portfolio"), promises to pay to _________ (the
"Bank"), on the Termination Date (as defined in the Credit Agreement hereinafter
referred to) the principal sum of ______________ ($__,000,000.00) or, if less,
the then aggregate unpaid principal amount of Federal Funds Rate Loans and
Eurodollar Loans (as such terms are defined in the Credit Agreement) as has been
borrowed by the Fund on behalf of the undersigned Portfolio from the Bank under
the Credit Agreement. The Fund, on behalf of the Portfolio, may borrow, repay
and reborrow hereunder in accordance with the provisions of the Credit
Agreement. All Federal Funds Rate Loans and Eurodollar Loans and all payments of
principal shall be recorded by the holder in its records.
Anything in this Note to the contrary notwithstanding, the Portfolio
shall be liable hereunder only for Federal Funds Rate Loans and Eurodollar Loans
borrowed by the Fund on behalf of such Portfolio under the Credit Agreement and
other obligations with respect thereto. The sole source of repayment of the
principal of and interest on each Loan hereunder and other obligations with
respect thereto made with respect to the Portfolio shall be the revenues and
assets of such Portfolio and not from any other asset of the Fund or any other
Portfolio of the Fund.
The Fund, on behalf of the Portfolio, further promises to pay to the
order of the Bank interest on the aggregate unpaid principal amount hereof from
time to time outstanding from the date hereof until paid in full at the rates
per annum which shall be determined in accordance with the provisions of the
Credit Agreement. Accrued interest shall be payable on the dates specified in
the Credit Agreement.
All payments of principal and interest under this Note shall be made in
lawful money of the United States of America in immediately available funds at
Bank of America National Trust and Savings Association, ABA No. 000000000,
Chicago Account Administration, Account No. 47-03421, Reference: Xxxx Xxxxx, or
at such other place as may be designated by the Bank to the Fund in writing.
This Note is the Note referred to in, and evidences indebtedness
incurred under, a Credit Agreement dated as of February 20, 1998 (herein, as it
may be amended, modified or supplemented from time to time, called the "Credit
Agreement") among the Fund, on behalf of the Portfolio, the other parties
thereto and the Bank, to which Credit Agreement
reference is made for a statement of the terms and provisions thereof, including
those under which the Portfolio is permitted and required to make prepayments
and repayments of principal of such indebtedness and under which such
indebtedness may be declared to be immediately due and payable.
Neither the shareholders, trustees or directors, as the case may be,
officers, employees and other agents of the Portfolio shall be personally bound
by or liable for any indebtedness, liability or obligation hereunder nor shall
resort be had to their private property for the satisfaction of any obligations
or claim hereunder.
All parties hereto, whether as makers, endorsers or otherwise,
severally waive presentment, demand, protest and notice of dishonor in
connection with this Note.
This Note is made under and governed by the internal laws of the State
of Illinois.
Address: [NAME OF FUND] ON BEHALF OF
000 Xxxxx Xxxxxx [NAME OF PORTFOLIO]
Xxxxxxxxx, XX 00000
By: _________________________
Title: _________________________
_____________________________
EXHIBIT C
DESIGNATION OF PORTFOLIOS
Any of the following designated Portfolios of [Name of Fund] (the
"Fund") may hereafter utilize the proceeds of Loans made to the Fund under the
Credit Agreement dated as of February 20, 1998, assuming that the Bank has
previously notified such Fund that it has approved such Portfolio as a borrower
under such Credit Agreement and that all conditions of lending with respect to
any such Portfolio and the Fund have been satisfied:
Legal Name d/b/a (if any)
---------- --------------
____________________ _______________________
____________________ _______________________
____________________ _______________________
EXHIBIT D
SCHEDULE OF LITIGATION
None
EXHIBIT E
SCHEDULE OF CONTINGENT LIABILITIES
None
EXHIBIT F
BORROWING BASE CERTIFICATE
Reference is made to that certain Credit Agreement dated as of February 20,
1998 (the "Credit Agreement") among the funds and portfolios party thereto, the
banks party thereto as lenders (the "Banks") and Bank of America National Trust
and Savings Association, as agent (the "Agent"). Capitalized terms used herein
and not otherwise defined shall have the meaning given to such terms in the
Credit Agreement. Pursuant to the terms of the Credit Agreement, the
undersigned, on behalf of the [Name of Fund] [on behalf of the applicable
Portfolio], certifies to the Agent and the Banks as follows:
As of _____________________, the Borrowing Base for such Fund or
Portfolio is calculated as follows:
(a) Total Assets (less the value of assets
subject to Liens), net of liabilities
and Indebtedness not represented by
Senior Securities $___________________
(b) Indebtedness $___________________
(c) Gross Assets
[(a) plus (b)] $___________________
(d) Gross Borrowing Base
[25.0% of (c)] $___________________
(e) Available Borrowing Base
[(d) minus (b)]
$___________________
Date: ____________________ ____________________, as investment
adviser to [Name of Fund]
By: ____________________________
Title: ____________________________
EXHIBIT G
FUNDS' AND PORTFOLIOS' INVESTMENT RESTRICTIONS
For a Fund's or Portfolio's investment restrictions, please see the most
recent Prospectus and Statement of Additional Information for such Fund or
Portfolio as indicated below:
XXXX XXXXX VALUE TRUST, INC.
Primary Share Prospectus dated July 31, 1997 Revised September 9, 1997, as
amended November 19, 1997
Navigator Share Prospectus dated July 31, 1997, as amended November 19, 1997
Statement of Additional Information dated July 31, 1997
XXXX XXXXX TOTAL RETURN TRUST, INC.
Primary Share Prospectus dated July 31, 1997 Revised September 9, 1997, as
amended November 19, 1997
Navigator Share Prospectus dated July 31, 1997, as amended November 19, 1997
Statement of Additional Information dated July 31, 1997
XXXX XXXXX SPECIAL INVESTMENT TRUST, INC.
Primary Share Prospectus dated July 31, 1997 Revised September 9, 1997, as
amended November 19, 1997
Navigator Share Prospectus dated July 31, 1997, as amended November 19, 1997
Statement of Additional Information dated July 31, 1997
XXXX XXXXX AMERICAN LEADING COMPANIES TRUST, A PORTFOLIO OF XXXX XXXXX INVESTORS
TRUST INC.
Primary Share Prospectus dated July 31, 1997 Revised September 9, 1997, as
amended November 19, 1997
Navigator Share Prospectus dated July 31, 1997, as amended November 19, 1997
Statement of Additional Information dated July 31, 1997
XXXX XXXXX BALANCED TRUST, A PORTFOLIO OF XXXX XXXXX INVESTORS TRUST, INC.
Primary Share Prospectus dated July 31, 1997 Revised September 9, 1997, as
amended November 19, 1997
Navigator Share Prospectus dated July 31, 1997, as amended November 19, 1997
Statement of Additional Information dated July 31, 1997
XXXX XXXXX GLOBAL GOVERNMENT TRUST, A PORTFOLIO OF XXXX XXXXX GLOBAL TRUST, INC.
Prospectuses dated May 1, 1997
Statement of Additional Information dated May 1, 1997
XXXX XXXXX INTERNATIONAL EQUITY TRUST, A PORTFOLIO OF XXXX XXXXX GLOBAL TRUST,
INC.
Prospectuses dated May 1, 1997
Statement of Additional Information dated May 1, 1997
XXXX XXXXX EMERGING MARKETS TRUST, A PORTFOLIO OF XXXX XXXXX GLOBAL TRUST, INC.
Prospectuses dated May 1, 1997
Statement of Additional Information dated May 1, 1997
XXXX XXXXX MARYLAND TAX-FREE INCOME TRUST, A PORTFOLIO OF XXXX XXXXX TAX-FREE
INCOME FUND
Prospectuses dated July 31, 1997, as amended November 3, 1997
Statement of Additional Information dated July 31, 1997, as amended November 3,
1997
XXXX XXXXX PENNSYLVANIA TAX-FREE INCOME TRUST, A PORTFOLIO OF XXXX XXXXX
TAX-FREE INCOME
Prospectuses dated July 31, 1997, as amended November 3, 1997
Statement of Additional Information dated July 31, 1997, as amended November 3,
1997
XXXX XXXXX TAX-FREE INTERMEDIATE-TERM INCOME TRUST, A PORTFOLIO OF XXXX XXXXX
TAX-FREE INCOME FUND
Prospectuses dated July 31, 1997, as amended November 3, 1997
Statement of Additional Information dated July 31, 1997, as amended November 3,
1997
XXXX XXXXX U.S. GOVERNMENT INTERMEDIATE-TERM PORTFOLIO, A PORTFOLIO OF XXXX
XXXXX INCOME TRUST, INC.
Primary Share Prospectus dated May 1, 1997 Revised December 31, 1997
Navigator Share Prospectus dated May 1, 1997, as amended August 4, 1997, August
22, 1997, October 17, 1997 and December 31, 1997
Statement of Additional Information dated May 1, 1997
XXXX XXXXX INVESTMENT GRADE INCOME PORTFOLIO, A PORTFOLIO OF XXXX XXXXX INCOME
TRUST, INC.
Primary Share Prospectus dated May 1, 1997 Revised December 31, 1997
Navigator Share Prospectus dated May 1, 1997, as amended August 4, 1997, August
22, 1997, October 17, 1997 and December 31, 1997
Statement of Additional Information dated May 1, 1997
G-2
XXXX XXXXX HIGH YIELD PORTFOLIO, A PORTFOLIO OF XXXX XXXXX INCOME TRUST, INC.
Primary Share Prospectus dated May 1, 1997 Revised December 31, 1997
Navigator Share Prospectus dated May 1, 1997, as amended August 4, 1997, August
22, 1997, October 17, 1997 and December 31, 1997
Statement of Additional Information dated May 1, 1997
XXXXXXXX VALUE INTERNATIONAL FUND, A PORTFOLIO OF XXXXXXXX CAPITAL TRUST
Prospectuses dated July 21, 1997, as amended November 3, 1997
Statement of Additional Information dated July 21, 1997, as amended November 3,
1997
XXXXXXXX EUROPE FUND, A PORTFOLIO OF XXXXXXXX CAPITAL TRUST
Prospectuses dated July 21, 1997, as amended November 3, 1997
Statement of Additional Information dated July 21, 1997, as amended November 3,
1997
XXXXXXXX BASIC VALUE FUND, A PORTFOLIO OF XXXXXXXX CAPITAL TRUST
Prospectuses dated July 21, 1997, as amended November 3, 1997
Statement of Additional Information dated July 21, 1997, as amended November 3,
1997
The foregoing items have been separately delivered on behalf of the Funds and
Portfolios to the Banks
G-3
EXHIBIT H
CONSENT LETTER
[Date]
Bank of America National
Trust and Savings Association, as Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxx Xxxxx
Re: Credit Agreement dated as of February 20, 1998 (the "Credit Agreement")
Ladies and Gentlemen:
Reference is made to Section 7.18 of the Credit Agreement. Capitalized
terms used herein but not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement.
Said Section 7.18 prohibits the payment to the undersigned of any
management and advisory fees of any type by a Fund or Portfolio under the Credit
Agreement for any period during which any Event of Default or Unmatured Event of
Default shall have occurred and be continuing with respect to such Fund or
Portfolio.
Please be advised Xxxx Xxxxx Fund Adviser, Inc. and Xxxx Xxxxx Capital
Management, Inc. (each an "Adviser") hereby acknowledge the terms of Section
7.18 of the Credit Agreement and consent to its provisions. At any time that any
Event of Default or Unmatured Event of Default under the Credit Agreement shall
have occurred and be continuing with respect to a Fund or Portfolio and any
Loans are outstanding with respect to such Fund or Portfolio, each Adviser will
neither demand nor accept payment of any management and advisory fees of any
type from such Fund or Portfolio during the continuance of such Event of Default
or Unmatured Event of Default, whether pursuant to the terms of any management
fee agreement with the Fund, the Portfolio or otherwise. Any fees received under
circumstances contrary to those contemplated by the terms of the Credit
Agreement and this letter shall be deemed to be held in trust for the benefit of
the Banks and shall be paid over to the Banks promptly upon receipt thereof.
The terms of this consent shall extend to all other Funds and/or
Portfolios of a Fund to which either of the Advisers may serve as investment
adviser and which may at any future date become borrowers under the terms of the
Credit Agreement.
Very truly yours,
XXXX XXXXX FUND ADVISER, INC.
By:_________________________
Title:______________________
XXXX XXXXX CAPITAL MANAGEMENT, INC.
By:__________________________
Title:_______________________
EXHIBIT I
FORM OF OPINION
EXHIBIT J
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of February 20, 1998
(as amended, modified or supplemented from time to time, the "Credit Agreement")
among various funds and portfolios party thereto, the banks party thereto as
lenders and Bank of America National Trust and Savings Association, as agent
(the "Agent"). Terms defined in the Credit Agreement are used herein with the
same meaning, unless otherwise defined herein.
The "Assignor" and the "Assignee" referred to on the signature page
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof equal to the percentage interest specified on Annex 1 of all outstanding
rights and obligations under the Credit Agreement. After giving effect to such
sale and assignment, the Assignee's and the Assignor's Commitments will be as
set forth on Annex 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Documents
by a Fund or Portfolio or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Documents or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Fund or Portfolio or the performance or observance by any Fund
or Portfolio of any of its obligations under the Credit Documents or any other
instrument or document furnished pursuant thereto; and (iv) attaches the Notes
held by the Assignor and requests that the Agent exchange such Notes for a new
Notes payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto or new Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal to the Commitment retained by the
Assignor under the Credit Agreement, respectively, as specified on Annex 1.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Acceptance; (ii) agrees that it will, independently and without reliance upon
any Agent, the Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) represents and warrants to each Fund and
Portfolio that it is an Eligible Lender; (iv) appoints and authorizes the Agent
to take such action on its behalf and to exercise such powers and discretion
under the Credit Agreement as are delegated to such Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
and (v) agrees that it will be bound by the terms of the Credit Agreement and
that it will perform in accordance with such terms all of the obligations that
by such terms are required to be performed by it as a Bank.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Annex 1.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (ii) the Assignor shall, if it has assigned
and delegated all its rights and duties under the Credit Documents, relinquish
its rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the internal laws of the State of Illinois.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Annex 1 to this Assignment and Acceptance by telecopier shall be
effective as delivery of a manually executed counterpart of this Assignment and
Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Annex 1
to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
Dated: ___________, 19__ [NAME OF ASSIGNOR], as Assignor
By:_________________________________
Title:
[NAME OF ASSIGNEE], as Assignee
By:_________________________________
Title:
The foregoing Assignment is accepted this ____ day of _____________, 19__, and,
in connection therewith, the undersigned acknowledges that the foregoing
assignment has been consented to by the Funds and Portfolios.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By:___________________________
Title:
ANNEX 1
to
ASSIGNMENT AND ACCEPTANCE
1. Information Concerning Assignment
(A) Percentage interest assigned: _______________
(B) Assignee's Commitment (after giving effect to
assignment): $______________
(C) Assignor's Commitment (after giving effect to
assignment): $______________
(D) Aggregate outstanding principal
amount of Loans assigned: $______________
(E) Principal amount of Notes payable to Assignee
(after giving effect to assignment): $______________
(F) Principal amount of Notes payable to Assignor
(after giving effect to assignment): $______________
(G) Effective Date (if other than date of acceptance
by Administrative Agent): ****__________,
199_
--------
*** This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
2. Administrative details for the Assignee:
(A) Notice Address:
Assignee name:
Address:
Attention:
Telephone: (___) ___-____
Telecopier: (___) ___-____
(B) Payment Instructions:
_________________________
_________________________
_________________________
