EXHIBIT H(7)
FOURTH AMENDMENT
FOURTH AMENDMENT (this "Amendment"), dated as of September 28, 2001,
among the separate mutual fund portfolios party to the hereinafter defined
Credit Agreement (the "Borrowers"), the lending institutions from time to time
party to the Credit Agreement (the "Banks"), Mellon Bank N.A. and Citibank N.A.,
as Co-Syndication Agents, State Street Bank and Trust Company, as Operations
Agent, and Deutsche Bank AG, New York Branch, as Administrative Agent (together
with the Operations Agent, the "Agents"). All capitalized terms used herein and
not otherwise defined shall have the respective meanings provided such terms in
the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Banks and the Agents are parties to a
Credit Agreement, dated as of March 11, 1999 (as amended to date, the "Credit
Agreement");
WHEREAS, the Borrowers have requested that the Banks amend the Credit
Agreement to permit certain additional Indebtedness of the Borrowers described
herein, and the Banks party hereto have agreed to the amendments specified
herein on the terms, and subject to the conditions, set forth herein;
NOW, THEREFORE, it is agreed:
1. Section 3.02 of the Credit Agreement is hereby amended by
deleting clause (b) thereof in its entirety and inserting the following new
clause (b) in lieu thereof:
(b) On any day on which the aggregate outstanding principal amount
of Loans, Interfund Loans and Investment Adviser Loans made to any Borrower
exceeds the Borrowing Base of such Borrower as then in effect, such
Borrower shall prepay principal of outstanding Loans equal to such excess.
2. Section 6.13 of the Credit Agreement is hereby amended by
deleting Section 6.13 in its entirety and inserting the following in lieu
thereof:
6.13. Senior Status. Except to the extent secured by Liens permitted
by Section 8.01, the Obligations of each Borrower hereunder rank senior to
all other Indebtedness of the respective Borrower.
3. Section 8 of the Credit Agreement is hereby amended by inserting
the following new Sections 8.10 and 8.11 at the end thereof:
8.10. Interfund Lending. (a) Notwithstanding anything in this
Agreement to the contrary (including Section 8.03 hereof), any Borrower may
make an Interfund Loan to another Borrower or borrow an Interfund Loan from
another Borrower, may repay
principal and/or interest with respect to an Interfund Loan, and the mere
making, borrowing, or repaying of principal and/or interest of an Interfund
Loan in and of itself shall not, with respect to any Borrower party thereto
(as a lender or a borrower), constitute a violation of any condition
precedent, representation or covenant contained herein or constitute a
Default or an Event of Default; provided that all other terms and
conditions of this Agreement are satisfied, and provided, further, that:
(i) such Interfund Loan (t) does not cause either (A) the Asset
Coverage Ratio of any Borrower to be less than the applicable minimum
Asset Coverage Ratio of such Borrower pursuant to Section 8.09 of this
Agreement at the time of incurrence thereof or (B) the aggregate
principal amount of Loans, Interfund Loans and Investment Adviser
Loans outstanding to any Borrower at the time of incurrence thereof to
exceed the Borrowing Base of such Borrower at such time, (u) is not
otherwise prohibited by law, (v) has been duly authorized, (w) is
consistent with the terms of an applicable order of the United States
Securities and Exchange Commission, (x) is not in contravention of
such Borrower's Prospectus and (y) expressly ranks junior in priority
to the repayment in full in cash of all outstanding Obligations under
this Agreement; provided however that principal and/or interest with
respect to an Interfund Loan may be repaid so long as no Default or
Event of Default has occurred and is continuing under this Agreement;
and
(ii) if, at any time, (x) an Interfund Loan is outstanding to
such Borrower, (y) such Borrower has Loans outstanding, and (z) either
(A) the Asset Coverage Ratio for such Borrower is less than the
applicable minimum Asset Coverage Ratio of such Borrower pursuant to
Section 8.09 of this Agreement or (B) the aggregate principal amount
of Loans, Interfund Loans and Investment Adviser Loans outstanding to
such Borrower at any time exceeds the Borrowing Base of such Borrower
at such time, then such Borrower shall prepay outstanding Loans
hereunder to the extent necessary to ensure that both the Asset
Coverage Ratio of such Borrower after such prepayments is at least
equal to the applicable minimum Asset Coverage Ratio of such Borrower
pursuant to Section 8.09 of this Agreement and the aggregate principal
amount of Loans, Interfund Loans and Investment Adviser Loans
outstanding to such Borrower does not exceed the Borrowing Base of
such Borrower.
(b) Without otherwise limiting the purposes for which proceeds of any
Borrowing may be used as specified in Section 6.08, subject to the
satisfaction of the conditions set forth in Section 5 and the other
conditions of this Agreement, including pro forma compliance with the
Borrowing Base of such Borrower after giving effect to such Borrowing, a
Borrower shall be expressly permitted to use the proceeds of a Borrowing of
Loans hereundcr to repay principal and/or interest with respect to an
outstanding Interfund Loan of such Borrower.
8.11. Investment Adviser Lending. (a) Notwithstanding anything in this
-2-
Agreement to the contrary (including Section 8.03 hereof), any Borrower may
borrow an Investment Adviser Loan, may repay principal and/or interest with
respect to an Investment Adviser Loan, and the mere borrowing or repaying
of principal and/or interest of an Investment Adviser Loan, in and of
itself shall not, with respect to any Borrower party thereto, constitute a
violation of any condition precedent, representation or covenant contained
herein or constitute a Default or an Event of Default; provided that all
other terms and conditions of this Agreement are satisfied, and provided,
further, that:
(i) such Investment Adviser Loan (t) does not cause either (A)
the Asset Coverage Ratio of any Borrower to be less than the
applicable minimum Asset Coverage Ratio of such Borrower pursuant to
Section 8.09 of this Agreement at the time of incurrence thereof or
(B) the aggregate principal amount of Loans, Interfund Loans and
Investment Adviser Loans outstanding to any Borrower at the time of
incurrence thereof to exceed the Borrowing Base of such Borrower at
such time, (u) is not otherwise prohibited by law, (v) has been duly
authorized, (w) is not in contravention of such Borrower's Prospectus
and (x) ) expressly ranks junior in priority to the repayment in full
in cash of all outstanding Obligations under this Agreement; provided
however that principal and/or interest with respect to an Investment
Advisor Loan may be repaid so long as no Default or Event of Default
has occurred and is continuing under this Agreement; and
(ii) if, at any time, (x) an Investment Adviser Loan is
outstanding to such Borrower, (y) such Borrower has Loans outstanding,
and (z) either (A) the Asset Coverage Ratio for such Borrower is less
than the applicable minimum Asset Coverage Ratio of such Borrower
pursuant to Section 8.09 of this Agreement or (B) the aggregate
principal amount of Loans, Interfund Loans and Investment Adviser
Loans outstanding to such Borrower at any time exceeds the Borrowing
Base of such Borrower at such time, then such Borrower shall prepay
outstanding Loans hereunder to the extent necessary to ensure that
both the Asset Coverage Ratio of such Borrower after such prepayments
is at least equal to the applicable minimum Asset Coverage Ratio of
such Borrower pursuant to Section 8.09 of this Agreement and the
aggregate principal amount of Loans, Interfund Loans and Investment
Adviser Loans outstanding to such Borrower does not exceed the
Borrowing Base of such Borrower.
(c) Without otherwise limiting the purposes for which proceeds of any
Borrowing may be used as specified in Section 6.08, subject to the
satisfaction of the conditions set forth in Section 5 and the other
conditions of this Agreement, including pro forma compliance with the
Borrowing Base of such Borrower after giving effect to such Borrowing, a
Borrower shall be expressly permitted to use the proceeds of a Borrowing of
Loans hereunder to repay principal and/or interest with respect to an
outstanding Investment Adviser Loan of such Borrower.
-3-
4. Section 10.01 of the Credit Agreement is hereby amended by
replacing the parenthetical appearing in the definition of "Asset Coverage
Denominator" with the following new parenthetical: "(including in any event all
Loans hereunder, all Interfund Loans and all Investment Adviser Loans)".
5. Section 10.01 of the Credit Agreement is hereby further amended
by inserting the following new definitions in appropriate alphabetical order:
"Interfund Lending Agreement" means an agreement entered into between
Borrowers party thereto, providing for the making of subordinated loans from
time to time from one such fund to other such funds.
"Interfund Loan" means any loan by a Borrower to a Borrower pursuant
to an Interfund Lending Agreement.
"Investment Adviser Lending Agreement" means an agreement entered into
between a Borrower and the Investment Adviser, any entity controlling,
controlled by, or in common control with the Investment Adviser, or any
Subsidiary of the Investment Adviser, as the case may be, providing for the
making of subordinated loans from time to time from the Investment Adviser, any
entity controlling, controlled by, or in common control with the Investment
Adviser, or any Subsidiary of the Investment Adviser, to such Borrower.
"Investment Adviser Loan" means any loan by the Investment Adviser,
any entity controlling, controlled by, or in common control with the Investment
Adviser, or any Subsidiary of the Investment Adviser to a Borrower pursuant to
an Investment Adviser Lending Agreement.
6. In order to induce the Banks and the Agents to enter into this
Amendment, each of the Borrowers hereby represents and warrants that (a) no
Default or Event of Default exists as of the date hereof both before and after
giving effect to this Amendment and (b) as of the date hereof, both before and
after giving effect to this Amendment, all representations and warranties of
such Borrower contained in the Credit Agreement are true and correct in all
material respects.
7. This Amendment is limited precisely as written and shall not be
deemed to be an amendment, consent, waiver or modification of any other term or
condition of the Credit Agreement, any other Credit Document or any of the
instruments or agreements referred to therein, or prejudice any right or rights
which the Banks, the Agents or any of them may now have or may have in the
future under or in connection with the Credit Agreement, any other Credit
Document or any of the instruments or agreements referred to therein. On and
after the Amendment Effective Date, all references to the Credit Agreement in
any Credit Document shall be deemed to be references to the Credit Agreement as
amended hereby.
8. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrowers and the Agents.
-4-
9. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.
10. This Amendment shall become effective on the date (the
"Amendment Effective Date") when the Borrowers and the Required Banks shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile transmission) the same
to White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000; Attention:
Xxxxx Xxxxxxxx; facsimile number (000) 000-0000.
* * * *
-5-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered on its behalf of
as of the date first above written.
AUTHORIZED OFFICER, on behalf
of each Borrower
By /s/ Xxxxx Xxxxxx
----------------------------
Name: XXXXX XXXXXX
Title: TREASURER
DEUTSCHE BANK AG, NEW YORK
BRANCH, as Administrative Agent
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered on its behalf of
as of the date first above written.
AUTHORIZED OFFICER, on behalf
of each Borrower
By
----------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
BRANCH, as Administrative Agent
By /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Vice President
By /s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Vice President
By /s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
STATE STREET BANK AND TRUST
COMPANY, Individually and as
Operations Agent
By /s/ Xxxx Xxxxx Xxxxxxxxx
----------------------------
Name: XXXX XXXXX XXXXXXXXX
Title: VICE PRESIDENT
CITIBANK, N.A., Individually
and as Co-Syndication Agent
By
----------------------------
Name:
Title:
MELLON BANK N.A., Individually
and as Co-Syndication Agent
By
----------------------------
Name:
Title:
BNP Paribas
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
DANSKE BANK A/S
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, Individually and as
Operations Agent
By
----------------------------
Name:
Title:
CITIBANK, N.A., Individually
and as Co-Syndication Agent
By /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Director
MELLON BANK N.A., Individually
and as Co-Syndication Agent
By
----------------------------
Name:
Title:
BNP Paribas
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
DANSKE BANK A/S
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, Individually and as
Operations Agent
By
----------------------------
Name:
Title:
CITIBANK, N.A., Individually
and as Co-Syndication Agent
By
----------------------------
Name:
Title:
MELLON BANK N.A., Individually
and as Co-Syndication Agent
By /s/ Xxxxx X. XxXxxxx
----------------------------
Name: Xxxxx X. XxXxxxx
Title: Lending Officer
BNP Paribas
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
DANSKE BANK A/S
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, Individually and as
Operations Agent
By
----------------------------
Name:
Title:
CITIBANK, N.A., Individually
and as Co-Syndication Agent
By
----------------------------
Name:
Title:
MELLON BANK N.A., Individually
and as Co-Syndication Agent
By
----------------------------
Name:
Title:
BNP Paribas
By /s/ Xxxxxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxxxxx X. Xxxxx
Title: Associate
By /s/ Phil Truesdole
----------------------------
Name: Phil Truesdole
Title: Director
DANSKE BANK A/S
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, Individually and as
Operations Agent
By
----------------------------
Name:
Title:
CITIBANK, N.A., Individually
and as Co-Syndication Agent
By
----------------------------
Name:
Title:
MELLON BANK N.A., Individually
and as Co-Syndication Agent
By
----------------------------
Name:
Title:
BNP Paribas
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
DANSKE BANK A/S
By /s/ Xxxxxx Xxxxxxxxxx
----------------------------
Name: XXXXXX XXXXXXXXXX
Title: VICE PRESIDENT
By /s/ Xxxx X. X'Xxxxx
----------------------------
Name: XXXX X. X'XXXXX
Title: ASSISTANT GENERAL MANAGER
