EXHIBIT (k)(4)
[GRAPHIC OMITTED]
SCOTIA CAPITAL
CREDIT AGREEMENT
dated as of
September 13, 2004
among
THE COLUMBIA FUNDS PARTY HERETO,
The Lenders Party Hereto
and
THE BANK OF NOVA SCOTIA,
as Administrative Agent
---------------------------
SCOTIA CAPITAL,
as Lead Arranger and Book Runner
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Xxxxx Xxxx LLP
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS.............................................................................................1
Section 1.1 Defined Terms..........................................................................1
Section 1.2 Terms Generally.......................................................................12
Section 1.3 Accounting Terms; GAAP................................................................13
Section 1.4 Concerning the Structure of This Credit Agreement.....................................13
Section 1.5 Classification of Loans and Borrowings................................................13
ARTICLE 2 THE CREDITS............................................................................................13
Section 2.1 Commitments...........................................................................13
Section 2.2 Revolving Loans and Revolving Borrowings..............................................14
Section 2.3 Requests for Revolving Borrowings.....................................................14
Section 2.4 Funding of Borrowings.................................................................15
Section 2.5 Termination and Reduction of Commitments..............................................16
Section 2.6 Repayment of Loans; Evidence of Debt..................................................17
Section 2.7 Prepayment of Loans...................................................................17
Section 2.8 Swingline Loans.......................................................................18
Section 2.9 Payments Generally; Pro Rata Treatment; Sharing of Setoffs............................20
Section 2.10 Liability of Borrower; Pro Rata Share.................................................21
ARTICLE 3 INTEREST, FEES, YIELD PROTECTION, ETC..................................................................22
Section 3.1 Interest..............................................................................22
Section 3.2 Interest Elections....................................................................22
Section 3.3 Fees..................................................................................24
Section 3.4 Alternate Rate of Interest............................................................24
Section 3.5 Increased Costs; Illegality...........................................................25
Section 3.6 Break Funding Payments................................................................27
Section 3.7 Taxes.................................................................................27
Section 3.8 Mitigation Obligations................................................................28
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.........................................................................29
Section 4.1 Organization and Power................................................................29
Section 4.2 Authority and Execution...............................................................29
Section 4.3 Binding Agreement.....................................................................29
Section 4.4 Litigation............................................................................29
Section 4.5 Approvals and Consents................................................................30
Section 4.6 No Defaults; No Legal Bar.............................................................30
Section 4.7 Regulated Investment Company Status; Taxes............................................30
Section 4.8 Compliance............................................................................31
Section 4.9 Limitations On Borrowing..............................................................31
Section 4.10 Property..............................................................................31
Section 4.11 Federal Reserve Regulations; Use of Loan Proceeds.....................................31
Section 4.12 Pension Plans; Multiemployer Plans....................................................31
Section 4.13 No Material Adverse Change............................................................31
Section 4.14 Material Agreements...................................................................32
Section 4.15 Financial Condition...................................................................32
Section 4.16 No Subsidiaries.......................................................................32
Section 4.17 Offerings in Compliance With Securities Laws.........................................32
Section 4.18 Investment Policies...................................................................32
Section 4.19 Prospectuses..........................................................................32
Section 4.20 No Misrepresentation..................................................................32
Section 4.21 Affiliate Status......................................................................33
ARTICLE 5 CONDITIONS.............................................................................................33
Section 5.1 Effective Date........................................................................33
Section 5.2 Each Credit Event.....................................................................34
ARTICLE 6 AFFIRMATIVE COVENANTS..................................................................................35
Section 6.1 Financial Statements and Other Information............................................35
Section 6.2 Notice of Material Events.............................................................36
Section 6.3 Legal Existence.......................................................................37
Section 6.4 Regulated Investment Company..........................................................37
Section 6.5 Insurance.............................................................................37
Section 6.6 Payment of Indebtedness and Performance of Obligations................................37
Section 6.7 Observance of Legal Requirements......................................................37
Section 6.8 Books and Records; Visitation.........................................................38
Section 6.9 Compliance With Prospectus............................................................38
Section 6.10 Purpose of Loans......................................................................38
ARTICLE 7 NEGATIVE COVENANTS.....................................................................................38
SECTION 7.1 INDEBTEDNESS..........................................................................38
SECTION 7.2 LIENS.................................................................................39
SECTION 7.3 FUNDAMENTAL CHANGES...................................................................39
SECTION 7.4 RESTRICTED PAYMENTS...................................................................40
SECTION 7.5 INVESTMENT POLICIES...................................................................40
SECTION 7.6 AMENDMENT OF CERTAIN DOCUMENTS........................................................40
SECTION 7.7 FISCAL YEAR...........................................................................40
SECTION 7.8 CHANGE IN ACCOUNTING PRINCIPLES.......................................................40
SECTION 7.9 SUBSIDIARIES..........................................................................40
SECTION 7.10 CHANGE IN INVESTMENT MANAGER..........................................................40
SECTION 7.11 ASSET COVERAGE RATIO..................................................................40
ARTICLE 8 EVENTS OF DEFAULT......................................................................................41
SECTION 8.1 EVENTS OF DEFAULT.....................................................................41
SECTION 8.2 RESULTS OF DEFAULTS AND EVENTS OF DEFAULT.............................................42
SECTION 8.3 REMEDIES..............................................................................42
ARTICLE 9 THE ADMINISTRATIVE AGENT...............................................................................43
ARTICLE 10 OTHER PROVISIONS......................................................................................45
SECTION 10.1 NOTICES...............................................................................45
SECTION 10.2 WAIVERS; AMENDMENTS...................................................................45
SECTION 10.3 EXPENSES; INDEMNITY; DAMAGE WAIVER....................................................46
SECTION 10.4 SUCCESSORS AND ASSIGNS................................................................47
SECTION 10.5 SURVIVAL..............................................................................49
SECTION 10.6 COUNTERPARTS; INTEGRATION; EFFECTIVENESS..............................................50
SECTION 10.7 SEVERABILITY..........................................................................50
SECTION 10.8 RIGHT OF SETOFF.......................................................................50
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS............................51
SECTION 10.10 WAIVER OF JURY TRIAL..................................................................51
SECTION 10.11 HEADINGS..............................................................................52
SECTION 10.12 INTEREST RATE LIMITATION..............................................................52
SECTION 10.13 LENDERS AS INVESTMENT COMPANY ACT BANKS...............................................52
SECTION 10.14 NON-RECOURSE..........................................................................52
SECTION 10.15 ADDITIONAL BORROWERS; WITHDRAWAL OF BORROWERS.........................................53
2
SCHEDULES:
Schedule 1.1......................................................................................List of Borrowers
Schedule 2.1....................................................................................List of Commitments
Schedule 7.5......................................................................Exceptions to Investment Policies
EXHIBITS:
Exhibit A.........................................................................Form of Assignment and Acceptance
Exhibit B...............................................................Form of Opinion of Counsel to the Borrowers
Exhibit C-1............................................................................................Form of Note
Exhibit C-2..................................................................................Form of Swingline Note
Exhibit D.........................................................................................Pro Rata Schedule
Exhibit E............................................................................Form of Compliance Certificate
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CREDIT AGREEMENT, dated as of September 13, 2004, by and among the
Columbia Funds a party hereto or which become a party hereto, the LENDERS party
hereto, and THE BANK OF NOVA SCOTIA, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
Section 1.1 DEFINED TERMS
As used in this Credit Agreement, the following terms have the
meanings specified below:
"ABR", when used in reference to any Revolving Loan or
Borrowing, refers to whether such Revolving Loan, or the Revolving Loans
comprising such Borrowing, are bearing interest at a rate determined by
reference to the Alternate Base Rate.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" means BNS, in its capacity as
administrative agent for the Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means an affiliated person, as defined in Section
2(a)(3) of the Investment Company Act.
"ALTERNATE BASE RATE" means, for any day, a rate per annum
equal to the greater of (i) the Prime Rate in effect on such day and (ii) the
Federal Funds Effective Rate in effect on such day PLUS 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate.
"APPLICABLE MARGIN" means 0.625% with respect to Swing Line
Loans, Federal Funds Loans and Eurodollar Loans, and 0% with respect to
Alternate Base Rate Loans.
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the
percentage of the aggregate Commitments represented by such Lender's Commitment.
If the Commitments have terminated or expired, the Applicable Percentages shall
be determined based upon the Commitments most recently in effect, after giving
effect to any assignments.
"ASSET COVERAGE RATIO" means with respect to any Borrower, the
ratio of (i) (a) the value of the Total Assets of such Borrower less (b) all
liabilities and indebtedness of such Borrower not represented by Senior
Securities of such Borrower (excluding, to the extent included therein,
obligations in respect of the outstanding principal balance of the Loans), to
(ii) the aggregate amount of Senior Securities Representing Indebtedness of such
Borrower, provided that if at the time of calculation thereof the aggregate
amount of all Senior Securities Representing Indebtedness of such Borrower is
zero, for purposes of such calculation such aggregate amount shall be one (1).
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4), and accepted by the Administrative Agent,
substantially in the form of Exhibit A or any other form approved by the
Administrative Agent.
"BNS" means The Bank of Nova Scotia.
"BOARD" means, as to any Borrower, such Borrower's board of
directors or board of trustees, as applicable.
"BOARD OF GOVERNORS" means the Board of Governors of the
Federal Reserve System of the United States of America.
"BORROWERS" means, collectively, the Columbia Funds signatory
hereto and each additional Columbia fund that is an investment company
registered under the Investment Company Act that becomes a Borrower hereunder in
accordance with Section 10.15(a), each, a "BORROWER"; PROVIDED that the term
"Borrower" shall not include any such entity from and after the date such
entity's participation in this Credit Agreement is terminated pursuant to
Section 10.15(b).
"BORROWING" means (i) a borrowing of Revolving Loans of the
same Type made, converted or continued on the same date to the same Borrower
and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect or (ii) a borrowing of a Swingline Loan made on the same date to the same
Borrower.
"BORROWING REQUEST" means a request for a Revolving Borrowing
in accordance with Section 2.3.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City or Boston are authorized or
required by law to remain closed, provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"CAPITAL LEASE OBLIGATIONS" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
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"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Credit Agreement, (b) any change in any law,
rule or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Credit Agreement or (c) compliance
by any Credit Party (or, for purposes of Section 3.5(b), by any lending office
of such Credit Party or by such Credit Party's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Credit Agreement.
"CLASS", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Swingline Loans.
"CODE" means the Internal Revenue Code of 1986.
"COMMITMENT" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in Swingline Loans hereunder, as such commitment may be changed from time to
time pursuant to Section 2.5 or pursuant to assignments by or to such Lender
pursuant to Section 10.4. The initial amount of each Lender's Commitment is set
forth on Schedule 2.1, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Commitments is $150,000,000.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of Exhibit E.
"CREDIT EXPOSURE" means, with respect to any Lender at any
time, the sum of the aggregate outstanding principal amount of such Lender's
Revolving Loans and its Swingline Exposure at such time.
"CREDIT PARTIES" means the Administrative Agent and the
Lenders.
"DEFAULT" means any event or condition which constitutes an
Event of Default or that upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"DOLLARS" or "$" refers to lawful money of the United States
of America.
"EFFECTIVE DATE" means the date on which the conditions
specified in Section 5.1 are satisfied (or waived in accordance with Section
10.2).
"ELIGIBLE INSTITUTION" means any Person that (i) is not a
"principal underwriter", as defined in Section 2(a)(29) of the Investment
Company Act, of any Borrower, and (ii) (A) as of the date hereof, is a "bank" as
defined in Section 2(a)(5) of the Investment Company Act, and (B) as of any date
hereafter, any Person that the Borrowers are permitted to borrow from under and
in accordance with Section 18(f)(1) of the Investment Company Act.
"ERISA" means the Employee Retirement Income Security Act of
1974.
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"ERISA AFFILIATE" means any entity, whether or not
incorporated, which is under common control with any Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes any Borrower and
which is treated as a single employer under Section 4001 of ERISA or Section 414
of the Code.
"EURODOLLAR", when used in reference to any Revolving Loan or
Revolving Borrowing, refers to whether such Revolving Loan, or the Revolving
Loans comprising such Revolving Borrowing, are bearing interest at a rate
determined by reference to an Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Section 8.1.
"EXCLUDED TAXES" means, with respect to any Credit Party or
any other recipient of any payment to be made by or on account of any obligation
of a Borrower hereunder, (a) income or franchise taxes imposed on (or measured
by) its net income by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Credit Party, in which its applicable lending
office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which a Borrower
is located and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by any Borrower under Section 3.8(b)), any withholding tax
that is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party to this Credit Agreement (or designates a new
lending office) or is attributable to such Foreign Lender's failure to comply
with Section 3.7(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from a Borrower with
respect to such withholding tax pursuant to Section 3.7(a).
"FEDERAL FUNDS" when used in reference to Revolving Loan or
Revolving Borrowing, refers to whether such Revolving Loan, or the Revolving
Loans comprising such Revolving Borrowing, are bearing interest at a rate
determined by reference to the Federal Funds Rate.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, a rate per
annum (expressed as a decimal, rounded upwards, if necessary, to the next higher
1/100 of 1%) equal to the weighted average of the rates on overnight Federal
Funds transactions with members of the Federal Reserve System arranged by
Federal Funds brokers on such day, as published by the Federal Reserve Bank of
New York on the Business Day next succeeding such day, provided that (i) if the
day for which such rate is to be determined is not a Business Day, the Federal
Funds Effective Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii) if such rate is not so published for any day, the Federal Funds
Effective Rate for such day shall be the average of the quotations for such day
on such transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by the Administrative Agent.
"FEDERAL FUNDS RATE" means, for any day, the rate of interest
per annum as determined by the Administrative Agent (rounded, if necessary, to
the next greater 1/100 of 1%) equal to the rate, as reported by BNS to the
Administrative Agent, at which BNS is offered overnight Federal Funds by a
Federal Funds broker of recognized standing selected in a commercially
reasonable manner by BNS in an amount approximately equal to its ratable share
of a Federal Funds Borrowing (or, in the case of a Swingline Loan, the amount
thereof), if applicable, at or about 3:00 p.m., New York City time, on such day,
provided that if such day is not a Business Day, the Federal Funds Rate for such
day shall be the rate at which the Administrative Agent is offered overnight
Federal Funds by such Federal Funds broker at or about 3:00 p.m., New York City
time, on the next preceding Business Day.
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"FEDERAL RESERVE FORM" means a Form FR U-1 duly completed by
the Administrative Agent and executed by each Borrower, the statements made in
which shall, in the reasonable opinion of the Administrative Agent, permit the
transactions contemplated hereby in compliance with Regulation U, together with
all instruments, certificates and other documents executed or delivered in
connection therewith or attached thereto.
"FINANCIAL OFFICER" means as to any Borrower, the chief
financial officer, principal accounting officer, treasurer or controller of such
Borrower.
"FLOATING RATE", when used in reference to a Revolving Loan or
Revolving Borrowing, refers to whether such Revolving Loan, or the Revolving
Loans comprising such Revolving Borrowing, are bearing interest at a rate
determined by reference to the Federal Funds Rate or the Alternate Base Rate.
"FOREIGN LENDER" means any Lender that is organized under the
laws of a jurisdiction other than the United States of America, any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United
States of America or any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply Borrowers for the purchase or
payment of) such Indebtedness or other obligation or to purchase (or to advance
or supply Borrowers for the purchase of) any security for the payment thereof,
(b) to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation, provided that the term "Guarantee" shall not include
indorsements for collection or deposit in the ordinary course of business. The
term "Guaranteed" has a meaning correlative thereto.
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"HEDGING AGREEMENT" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"INDEBTEDNESS" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed by such Person, (g) all Guarantees by such
Person of Indebtedness of others, (h) all Capital Lease Obligations of such
Person, (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty and (j)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances, provided that the term "Indebtedness" shall not include obligations
of any Person under repurchase, reverse repurchase, securities lending, when
issued securities, delayed delivery securities arrangements, short sales,
options and futures.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEE" has the meaning assigned to such term in Section
10.3(b).
"INTEREST ELECTION REQUEST" means a request to convert or
continue a Borrowing in accordance with Section 3.2.
"INTEREST PAYMENT DATE" means, with respect to: (i) any
Floating Rate Loan, the last day of each March, June, September and December,
(ii) any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part, (iii) any Swingline Loan, the Maturity
Date of such Loan, and (iv) all Loans, the Termination Date.
"INTEREST PERIOD" means, with respect to any Eurodollar
Borrowing of any Borrower, the period commencing on the date of such Borrowing
and ending on the numerically corresponding day in the calendar month that is
one month thereafter, as such Borrower may elect, provided that (a) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day, unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (b) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
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"INVESTMENT COMPANY ACT" means the Investment Company Act of
1940.
"INVESTMENT MANAGER" means Highland Capital Management L.P., a
Delaware Partnership, or any other Person permitted by Section 7.10.
"INVESTMENT POLICIES" means, as to any Borrower, collectively
(i) the policies and objectives for, and limits and restrictions on, investing
by such Borrower set forth in such Borrower's Prospectus as in effect on the
Effective Date (or, in the case of a series or portfolio of a Borrower which
becomes a Borrower after the Effective Date pursuant to Section 10.15(a), the
date on which it becomes a Borrower) and which may be changed only by a vote of
a majority (as defined in the Investment Company Act) of such Borrower's
outstanding voting shares and (ii) all policies limiting the incurrence of
Indebtedness by such Borrower set forth in such Borrower's Prospectus as in
effect on the Effective Date (or, in the case of a Borrower which becomes a
Borrower after the Effective Date pursuant to Section 10.15(a), the date on
which it becomes a Borrower).
"LENDERS" means the Persons listed on Schedule 2.1 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"LIBO RATE" means the rate of interest per annum determined on
the basis of the rate for deposits in Dollars in minimum amounts of $1,000,000
for a period equal to the applicable Interest Period which appears on the Dow
Xxxxx Market Screen 3750 (or on any successor or substitute page of such
service, or any successor to or substitute for such service, providing rate
quotations of the BBA Interest Settlement Rates for U.S. dollars, as reasonably
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of the applicable Interest Period (rounded
upward, if necessary, to the nearest 1/100th of 1%). If, for any reason, such
rate is not available, then "LIBOR" shall be determined by the Administrative
Agent to be the arithmetic average of the rate per annum at which deposits in
Dollars in minimum amounts of $1,000,000 would be offered by first class banks
in the London interbank market to the Administrative Agent at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period. Each
calculation by the Administrative Agent of LIBOR shall be conclusive and binding
for all purposes, absent manifest error.
"LIEN" means, with respect to (i) any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, and (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention agreement
relating to such asset, and (ii) any securities, any purchase option, call or
similar right of a third party.
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"LOAN BALANCE" means as to any Borrower on any date of
determination, an amount equal to the aggregate outstanding principal balance of
the Loans made to such Borrower.
"LOAN DOCUMENTS" means this Credit Agreement and the Notes.
"LOANS" means the Revolving Loans and the Swingline Loans made
to the Borrowers pursuant to this Credit Agreement.
"MARGIN STOCK" has the meaning assigned to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means, with respect to any Borrower,
a material adverse effect on (a) the business, assets or condition, financial or
otherwise, of such Borrower not caused by any price movements in the financial
markets generally, (b) the ability of any Borrower to perform any of its
material obligations under any Loan Document or (c) the rights of or benefits
available to any Credit Party under any Loan Document.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than
Indebtedness under the Loan Documents) or obligations in respect of one or more
Hedging Agreements, of any Borrower in an aggregate principal amount exceeding
the Threshold Amount. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of such Borrower in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting or set-off agreements or similar rights) that such Borrower would be
required to pay if such Hedging Agreement were terminated at such time.
"MATURITY DATE" means, with respect to (i) any Revolving Loan,
the Business Day specified in the Borrowing Request with respect thereto, which
Business Day is not later than 30 days after the date on which such Revolving
Loan is made, and (ii) any Swingline Loan, the Business Day specified in the
request for such Loan pursuant to Section 2.8(b), which Business Day is not
later than seven Business Days after the date on which such Swingline Loan is
made, PROVIDED, HOWEVER, that in all events, a Maturity Date may not be after
the Termination Date.
"MAXIMUM LOAN VALUE" means, in respect of any Borrower, at any
time with respect to such Borrower's assets constituting (i) Margin Stock, the
"current market value" (within the meaning of Regulation U) thereof at such
time, and (ii) Non-Margin Assets, the "good faith loan value" (within the
meaning of Regulation U) thereof at such time.
"MAXIMUM PERMITTED BORROWING" means with respect to any
Borrower at any time of determination, an amount equal to the sum on such date
of (x) 50% of the Maximum Loan Value of such Borrower's Margin Stock plus (y)
the Maximum Loan Value of such Borrower's Non-Margin Assets.
"MEASUREMENT DATE" means with respect to any Borrower, the
date of the most recent audited financial statements of such Borrower which were
delivered to the Administrative Agent prior to the date on which such Borrower
became a Borrower under this Credit Agreement.
8
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NET ASSET VALUE" means, as to any Borrower at any time of
determination, the amount by which (i) the sum of, without duplication (x) the
value of the securities owned by such Borrower (other than securities in default
(except to the extent that such Borrower is required or permitted to attribute a
value thereto pursuant to the Investment Company Act, the rules thereunder, GAAP
and such Borrower's Prospectus) or determined to be worthless pursuant to any
policy of such Borrower's Board) and (y) any cash and other assets (including
interest and dividends accrued but not yet received, prepaid expenses and
proceeds of Loans) of such Borrower exceeds (ii) the sum of all liabilities of
such Borrower (including accrued expenses and including, without duplication,
the value of all assets of such Borrower subject to a Lien described in Section
7.2(e)) other than Indebtedness of such Borrower under the Loan Documents.
"NOTES" means (i) with respect to each Lender in respect of
such Lender's Loans, a promissory note, substantially in the form of Exhibit
C-1, payable to the order of such Lender, each such promissory note having been
made by the applicable Borrower and dated the Effective Date, including all
replacements thereof and substitutions therefor, and (ii) with respect to the
Swingline Lender, a promissory note evidencing the Swingline Lender's Swingline
Loans substantially in the form of Exhibit C-2, payable to the order of the
Swingline Lender (or, if required by the Swingline Lender, to the Swingline
Lender and its registered assigns).
"NON-MARGIN ASSETS" means, in respect of any Borrower, assets
of such Borrower which do not constitute Margin Stock, provided, that, for
purposes of this definition, "Non-Margin Assets" shall not include "puts, calls
or combinations thereof" (within the meaning of Regulation U).
"NON-RECOURSE PERSON" has the meaning assigned to such term in
Section 10.14.
"OTHER TAXES" means any and all current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, the Loan Documents.
"PARTICIPANT" has the meaning assigned to such term in Section
10.4(e).
"PERMITTED LIENS" means Liens permitted by Section 7.2.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which any Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
9
"PRO RATA SCHEDULE" has the meaning assigned to such term in
Section 2.10(a).
"PRO RATA SHARE" has the meaning set forth in Section 2.10(a).
"PROSPECTUS" means, as to each Borrower at any time, the
currently effective prospectus and statement of additional information of such
Borrower as filed with the Securities and Exchange Commission under the
Securities Act.
"REGISTER" has the meaning assigned to such term in Section
10.4(c).
"REGISTRATION STATEMENT" means, as to each Borrower, such
Borrower's registration statement filed with the Securities and Exchange
Commission under the Securities Act and the Investment Company Act, in the form
in which declared effective by the Commission.
"REGULATED INVESTMENT COMPANY" has the meaning set forth in
Section 851 of the Code.
"REGULATION T" means Regulation T of the Board of Governors as
from time to time in effect and all official rulings and interpretations
thereunder or thereof.
"REGULATION U" means Regulation U of the Board of Governors as
from time to time in effect and all official rulings and interpretations
thereunder or thereof.
"REGULATION X" means Regulation X of the Board of Governors as
from time to time in effect and all official rulings and interpretations
thereunder or thereof.
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having Credit
Exposures and unused Commitments representing more than 51% of the sum of the
total Credit Exposures and unused Commitments at such time.
"REVOLVING LOAN" means a loan referred to in Section 2.1 and
made pursuant to Section 2.4.
"SECURITIES ACT" means the Securities Act of 1933.
"SENIOR SECURITIES REPRESENTING INDEBTEDNESS" means any Senior
Security other than stock.
"SENIOR SECURITY" means, with respect to any Borrower, any
bond, debenture, note or similar obligation or instrument constituting a
security and evidencing indebtedness of such Borrower, including the Notes, and
any stock issued by such Borrower of a class having priority over any other
class as to distribution of assets or payment of dividends, PROVIDED that
"Senior Security" shall (a) except as otherwise provided in clause (b) below,
not include any promissory note or other evidence of indebtedness issued in
consideration of any loan, extension or renewal thereof, in any case where such
loan is for temporary purposes only and is in an amount not exceeding 5% of the
value of the Total Assets of such Borrower at the time when the loan is made,
and (b) include all indebtedness under the Loan Documents.
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"STATUTORY RESERVE RATE" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board of Governors to which the Administrative
Agent is subject for eurocurrency Funding (currently referred to as
"EUROCURRENCY LIABILITIES" in Regulation D of the Board of Governors). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency Funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"SUBSIDIARY" means, with respect to any Person (the "PARENT")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned or controlled by the parent or one or more
Subsidiaries of the parent.
"SWINGLINE COMMITMENT" means, with respect to the Swingline
Lender, the commitment of the Swingline Lender to make Swingline Loans
hereunder. The initial amount of the Swingline Lender's Swingline Commitment is
$25,000,000.
"SWINGLINE EXPOSURE" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage based on
the Swingline Exposure at such time.
"SWINGLINE LENDER" means BNS in its capacity as the lender of
Swingline Loans hereunder.
"SWINGLINE LOAN" means a loan in dollars made pursuant to
Section 2.8.
"TAXES" means any and all current or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
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"TERMINATION DATE" means September 12, 2005 or such earlier
date on which the Loans shall become due and payable, whether by acceleration or
otherwise.
"THRESHOLD AMOUNT" means with respect to any Borrower, the
lesser of (i) 3% of the aggregate Net Asset Value of such Borrower, and (ii)
$1,000,000.
"TOTAL ASSETS" means with respect to any Borrower at any time,
all assets of such Borrower which in accordance with GAAP would be classified as
assets on a balance sheet of such Borrower prepared as of such time; provided,
that the term Total Assets shall not include (i) equipment, (ii) securities
owned by such Borrower which are in default (except to the extent that such
Borrower is required or permitted to attribute a value thereto pursuant to the
Investment Company Act, the rules thereunder and such Borrower's Prospectus) or
determined to be worthless pursuant to any policy of such Borrower's Board,
(iii) capitalized organizational and offering costs and (iv) all assets of such
Borrower which are segregated to cover or meet obligations of such Borrower or
are on deposit to satisfy margin requirements to the extent that such
obligations and margin requirements have not been recognized in calculating the
liabilities of such Borrower for purposes of determining such Borrower's
compliance with the terms of this Credit Agreement.
"TRANSACTIONS" means the (i) execution, delivery and
performance by each of the Borrowers of each Loan Document to which it is a
party, (ii) borrowing of the Loans by such Borrower and (iii) use of the
proceeds of the Loans by such Borrower.
"TYPE", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to an Adjusted LIBO Rate, the
Alternate Base Rate or the Federal Funds Rate.
Section 1.2 TERMS GENERALLY
The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any definition
of or reference to any law shall be construed as referring to such law as from
time to time amended and any successor thereto and the rules and regulations
promulgated from time to time thereunder, (iii) any reference herein to any
Person shall be construed to include such Person's successors and permitted
assigns, (iv) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Credit Agreement in its entirety and
not to any particular provision hereof, (v) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Credit Agreement and (vi) the
words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
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Section 1.3 ACCOUNTING TERMS; GAAP
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time, provided that, if the Borrowers notify the
Administrative Agent that they request an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP or in
the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrowers that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
Section 1.4 CONCERNING THE STRUCTURE OF THIS CREDIT AGREEMENT
On the date hereof Columbia Floating Rate Limited Liability Company is
the only Borrower, however this Agreement is structured so as to provide a
framework for the addition of other Borrowers after the date hereof without the
need to substantially revise this Agreement.
Section 1.5 CLASSIFICATION OF LOANS AND BORROWINGS
For purposes of this Credit Agreement, Loans may be classified
and referred to by Class (e.g., a "REVOLVING LOAN") or by Type (E.G., a
"EURODOLLAR LOAN") or by Class and Type (E.G., a "EURODOLLAR REVOLVING LOAN").
Borrowings may also be classified and referred to by Class (E.G., a "REVOLVING
BORROWING") or by Type (e.g., a "EURODOLLAR BORROWING") or by Class and Type
(E.G., a "EURODOLLAR REVOLVING BORROWING").
ARTICLE 2 THE CREDITS
Section 2.1 COMMITMENTS
Subject to the terms and conditions set forth herein, each
Lender agrees to make Revolving Loans to any Borrower from time to time during
the period from the Effective Date through the Business Day immediately
preceding the Termination Date in an aggregate principal amount that will not
result in (i) such Lender's Credit Exposure exceeding such Lender's Commitment
or (ii) such Borrower's Loan Balance exceeding its Maximum Permitted Borrowing.
Within the foregoing limits and subject to the terms and conditions set forth
herein, each Borrower may borrow, prepay and reborrow Revolving Loans. Each
Revolving Loan shall be made for a specific purpose set forth in Section 6.10
and shall be due and payable on the Maturity Date with respect thereto, provided
that the outstanding principal balance of all Revolving Loans shall be due and
payable, together with interest thereon and all fees and other amounts due and
owing under the Loan Documents, on the Termination Date. Revolving Loans will be
made available to the Borrowers on a first come, first served basis, PROVIDED,
HOWEVER, that if the amount of Revolving Loans which one or more of the
Borrowers would otherwise request on the same Business Day would exceed the then
available Commitments, such Borrowers will apportion the available Commitments
among such Borrowers on the basis as set forth in resolutions duly adopted by
the Board of each such Borrower or otherwise as such Borrowers may decide in
accordance with applicable law.
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Section 2.2 REVOLVING LOANS AND REVOLVING BORROWINGS
(a) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in accordance with
their respective Commitments. The failure of any Lender to make any Revolving
Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder, provided that the Commitments of the Lenders are several,
and no Lender shall be responsible for any other Lender's failure to make
Revolving Loans as required hereunder.
(b) Subject to Section 3.4, each Borrowing shall be comprised
entirely of Federal Funds Loans, Alternate Base Rate Loans or Eurodollar Loans,
as applicable, in each case as a Borrower, may request in accordance with the
provisions hereof. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan, provided that any exercise of such option shall not affect the obligation
of the applicable Borrower to repay such Loan in accordance with the terms of
this Credit Agreement. Each Swingline Borrowing shall be a Swingline Loan.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $100,000 and not less than $500,000. At the time that each
Floating Rate Borrowing is made, such Borrowing shall be in an aggregate amount
that is an integral multiple of $100,000 and not less than $500,000, provided
that notwithstanding anything in this Section 2.2(c) to the contrary, a Floating
Rate Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the aggregate Commitments. Borrowings of more than one Type may be
outstanding at the same time, provided that there shall not at any time be more
than a total of eight Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Credit
Agreement, no Borrower shall be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect thereto
would end after the Termination Date.
Section 2.3 REQUESTS FOR REVOLVING BORROWINGS
(a) To request a Revolving Borrowing, a Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 12:00 Noon, New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of a
Floating Rate Borrowing, not later than 3:00 p.m., New York City time, on the
date of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or fax to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the applicable Borrower. Each such telephonic
and written Borrowing Request shall specify the following information in
compliance with Section 2.2:
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(i) the identity of the Borrower to which such
requested Borrowing is to be made;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a
Business Day;
(iv) the requested Maturity Date, which shall be a
Business Day;
(v) whether such Borrowing is to be a Federal Funds
Borrowing, Alternate Base Rate Borrowing or a
Eurodollar Borrowing;
(vi) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which
shall be a period contemplated by the definition of
the term "Interest Period";
(vii) the location and number of the applicable
Borrower's account to which funds are to be
disbursed, which shall comply with the requirements
of Section 2.4; and
(viii) a reasonably detailed calculation of the Asset
Coverage Ratio of such Borrower on a pro forma
basis immediately after giving effect to such
Borrowing.
(b) If no election as to the Type of Borrowing is specified,
then the requested Borrowing shall be a Federal Funds Borrowing. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Revolving Loan to be made as part of the requested
Borrowing.
Section 2.4 FUNDING OF BORROWINGS
(a) Each Lender shall make each Revolving Loan to be made by
it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 4:00 p.m., New York City time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders. Subject to Section 5.2, the Administrative Agent will make such
Revolving Loans available to the applicable Borrower by promptly crediting or
otherwise transferring the amounts so received, in like funds, to the account of
such Borrower maintained with the Administrative Agent and designated in the
applicable Borrowing Request, PROVIDED that Revolving Loans made to finance the
repayment of a Swingline Loan as provided in Section 2.8(c) shall be remitted by
the Administrative Agent to the Swingline Lender. Swingline Loans shall be made
as provided in Sections 2.8(a) and (b).
15
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Revolving Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this
Section and paragraph (c) of Section 2.8 and may, in reliance upon such
assumption, make available to the applicable Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Revolving Borrowing available to the Administrative Agent, then the Lender and
such Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to such Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of such Borrower, the interest rate that would
be otherwise applicable to such Revolving Borrowing; provided that such Borrower
(A) may request a Revolving Borrowing or, except in a case arising under
paragraph (c) of Section 2.8, a Swingline Borrowing to satisfy such demand, or
(B) to the extent unable to borrow under clause (A) may borrow from any Person
as permitted by applicable law and this Credit Agreement to satisfy such demand.
If such Lender pays such amount to the Administrative Agent, then such amount
shall constitute such Lender's Revolving Loan included in such Revolving
Borrowing.
Section 2.5 TERMINATION AND REDUCTION OF COMMITMENTS
(a) Unless previously terminated, the Commitments shall
terminate on the Termination Date.
(b) The Borrowers may at any time terminate, or from time to
time reduce, without premium or penalty, the Commitments, provided that (i) the
Borrowers shall not terminate or reduce the Commitments if, after giving effect
to any concurrent prepayment of the Loans in accordance with Section 2.7, the
sum of the Credit Exposures would exceed the aggregate Commitments, and (ii)
each such reduction shall be in an amount that, when added to the amount of each
such prepayment, is an integral multiple of $100,000 and not less than $500,000.
(c) The Borrowers shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrowers pursuant to this Section shall be irrevocable, PROVIDED that a notice
of termination of the Commitments delivered by the Borrowers may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrowers (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
hereunder shall be permanent. Each reduction of the Commitments hereunder shall
be made ratably among the Lenders in accordance with their respective
Commitments. Each termination or reduction of the Commitments shall be
accompanied by the payment of accrued and unpaid commitment fees to the extent
required by Section 3.3(a).
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Section 2.6 REPAYMENT OF LOANS; EVIDENCE OF DEBT
(a) Each Borrower, severally and not jointly, hereby
unconditionally promises to pay (i) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Revolving Loan made to
it on the Maturity Date thereof and (ii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan made to it on the Maturity Date thereof,
provided that the then unpaid principal amounts of all Loans shall be due and
payable in all events on the Termination Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the debt of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan to each Borrower made hereunder, the
Class and Type thereof, the Interest Period applicable thereto and the Maturity
Date thereof, (ii) the amount of any principal or interest due and payable or to
become due and payable from each Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for the account
of the Lenders and each Lender's share thereof. The Administrative Agent shall
provide copies of such accounts to each Borrower upon request.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) and (c) of this Section shall, to the extent not prohibited by
applicable law and not inconsistent with any entries made in any Note and absent
manifest error, be prima facie evidence of the existence and amounts of the
obligations recorded therein, provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrowers to repay the Loans in
accordance with the terms of this Credit Agreement.
Section 2.7 PREPAYMENT OF LOANS
(a) Each Borrower shall have the right at any time and from
time to time, without premium or penalty (but subject to Section 3.6), to prepay
any Revolving Borrowing made to it in whole or in part, subject to the
requirements of this Section.
(b) Each Borrower making a prepayment, shall notify the
Administrative Agent by telephone (confirmed by fax) of any prepayment hereunder
(i) in the case of prepayment of a Eurodollar Borrowing, not later than 3:00
p.m., New York City time, three Business Days before the date of prepayment or
(ii) in the case of prepayment of a Floating Rate Borrowing, not later than 3:00
p.m., New York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the identity of the Borrower making the
prepayment, the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid, provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.5, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.5. Promptly
following receipt of any such notice relating to a Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Borrowing under Section 2.7(a) shall, when added to the amount of each
concurrent reduction of the Commitments and prepayment of Borrowings under such
Sections, be in an integral multiple of $100,000 and not less than $500,000.
Each prepayment of a Borrowing shall be applied ratably to the Loans included in
the prepaid Borrowing. Prepayments shall be accompanied by accrued and unpaid
interest to the extent required by Section 3.1.
17
Section 2.8 SWINGLINE LOANS
(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to any Borrower in dollars from
time to time on any Business Day during the period from the Effective Date to
the tenth Business Day preceding the Termination Date in an aggregate principal
amount at any time outstanding that will not result in (i) the Swingline
Exposure exceeding the Swingline Commitment (notwithstanding that the Swingline
Loans outstanding at any time, when aggregated with the Swingline Lender's other
outstanding Revolving Loans hereunder, may exceed the Swingline Lender's
Commitment then in effect), (ii) the sum of the total Credit Exposures exceeding
the aggregate Commitments or (iii) such Borrower's Loan Balance exceeding such
Borrower's Maximum Permitted Borrowing, PROVIDED that the Swingline Lender shall
not be obligated to make a Swingline Loan to refinance an outstanding Swingline
Loan. Notwithstanding the foregoing, the Swingline Lender shall not be required
to make a Swingline Loan if (i) prior thereto or simultaneously therewith no
Borrower shall have borrowed Revolving Loans, (ii) any Lender shall be in
default of its obligations under this Credit Agreement or (iii) any Lender shall
have notified the Swingline Lender and the Borrowers in writing at least one
Business Day prior to the borrowing date with respect to such Swingline Loan,
that the conditions set forth in Section 5.2 have not been satisfied and such
conditions remain unsatisfied as of the requested time of the making of such
Swingline Loan. Each Swingline Loan shall be due and payable on the Maturity
Date thereof, provided that in no event shall such Maturity Date be later than
the fifth Business Day preceding the Termination Date.
(b) To request a Borrowing of a Swingline Loan, the Borrower
to which such Swingline Loan is to be made, shall notify the Administrative
Agent and the Swingline Lender of such request by telephone (confirmed by fax)
no later than 3:00 p.m., New York City time, on the date of the relevant
Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the
identity of the Borrower to which the requested Swingline Loan is to be made,
(ii) the principal amount to be borrowed, (iii) the requested date of the
borrowing of such Swingline Loan (which shall be a Business Day), and (iv) the
requested Maturity Date of such Swingline Loan which shall be not later than
seven Business Days after the making of such Swingline Loan. The Swingline
Lender will make the requested amount available promptly on that same day in
immediately available funds to the Administrative Agent (for the account of such
Borrower as set forth in Section 2.4) and the Administrative Agent, thereupon,
will promptly make such amount available to such Borrower in like funds as
provided therein. Each Swingline Loan shall be in an aggregate amount that is an
integral multiple of $100,000 and not less than $500,000.
18
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 3:00 p.m., New York City time, on any
Business Day notify the Administrative Agent that the Swingline Lender is
requesting that the Lenders make an Alternate Base Rate Borrowing in an amount
equal to the outstanding principal balance and accrued interest on the Swingline
Loans, in which case (i) the Administrative Agent shall notify each Lender of
the details thereof and of the amount of such Lender's Revolving Loan to be made
as part of such Alternate Base Rate Borrowing, and (ii) each Lender shall,
whether or not any Default shall have occurred and be continuing, any
representation or warranty shall be accurate, any condition to the making of any
Loan hereunder shall have been fulfilled, or any other matter whatsoever, make
the Loan to be made by it under this paragraph by wire transfer of immediately
available funds to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders, (A) in the event
that such Lender shall have received notice of such Alternate Base Rate
Borrowing prior to 3:30 p.m., New York City time on any Business Day, on such
Business Day, or (B) in all other events, no later than 1:00 p.m., New York City
time, on the Business Day immediately succeeding the Business Day upon which
such Lender shall have received such notice. Such Loans shall, for all purposes
hereof, be deemed to be a Floating Rate Borrowing made pursuant to Section 2.3,
and the Lenders obligations to make such Loans shall be absolute and
unconditional. The Administrative Agent will make such Loans available to the
Swingline Lender by promptly crediting or otherwise transferring the amounts so
received, in like funds, to the Swingline Lender for the purpose of repaying in
full the Swingline Loans and all accrued interest thereon.
(d) If any Borrower fails to make any payment owed by it with
respect to a Swingline Loan, or if any such sum paid by a Borrower is required
to be refunded to such Borrower for any reason, the Administrative Agent shall
notify each applicable Lender of the affected Swingline Loan, the payment then
due from or to such Borrower in respect thereof and such Lender's Applicable
Percentage thereof. Each Lender shall purchase a participation in such Swingline
Loan by paying to the Administrative Agent its Applicable Percentage of the
payment then due from such Borrower, in the same manner as provided in Section
2.4 with respect to Loans made by such Lender (and Section 2.4 shall apply,
MUTATIS MUTANDIS, to the payment obligations of the applicable Lenders), by wire
transfer of immediately available funds to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders,
(A) in the event that such Lender shall have received notice of such Floating
Rate Borrowing prior to 3:30 p.m., New York City time on any Business Day, on
such Business Day, or (B) in all other events, no later than 1:00 p.m., New York
City time, on the Business Day immediately succeeding the Business Day upon
which such Lender shall have received such notice. The Administrative Agent
shall promptly pay to the Swingline Lender the amounts so received by it from
the applicable Lenders. Promptly following receipt by the Administrative Agent
of any payment in respect of such Swingline Loan from such Borrower, the
Administrative Agent shall distribute such payment to the Swingline Lender or,
to the extent that Lenders have made payments pursuant to this paragraph to
reimburse the Swingline Lender, then to such Lenders and the Swingline Lender as
their interests may appear. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Swingline Loans is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
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Section 2.9 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SETOFFS
(a) Each Borrower shall make each payment required to be made
by it hereunder or under any other Loan Document (whether of principal of Loans,
interest or fees, or of amounts payable under Sections 3.5, 3.6, 3.7 or 10.3, or
otherwise) prior to 4:00 p.m., New York City time, on the date when due, in
immediately available funds, without setoff or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. Subject to Section
2.6(a)(ii), all such payments shall be made to the Administrative Agent at its
office at One Liberty Plaza, New York, New York, or such other office as to
which the Administrative Agent may notify the other parties hereto, except that
payments pursuant to Sections 3.5, 3.6, 3.7 and 10.3 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by, and
available to, the Administrative Agent to pay fully all amounts of principal of
Loans, interest and fees then due hereunder, such funds shall be applied (i)
first, to payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties and (ii) second, to payment of principal of Loans then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal of Loans then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of, or
interest on, any of its Loans or participations in Swingline Loans resulting in
such Lender receiving payment of a greater proportion of the aggregate amount of
its Loans and participations in Swingline Loans and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans and participations in Swingline Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of, and
accrued interest on, their respective Loans and participations in Swingline
Loans, PROVIDED that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by a Borrower pursuant to and in
accordance with the express terms of this Credit Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in Swingline Loans to any
assignee or participant, other than to such Borrower or Affiliate thereof (as to
which the provisions of this paragraph shall apply). Each Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower all its rights to
payment (including rights of setoff and counterclaim) with respect to such
participation as fully as if such Lender were a direct creditor of such Borrower
in the amount of such participation but only to the extent of such Borrower's
obligations to such Lender hereunder.
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(d) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due from such Borrower
to the Administrative Agent for the account of the applicable Credit Parties
hereunder that such Borrower will not make such payment, the Administrative
Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
such Credit Parties the amount due. In such event, if such Borrower has not in
fact made such payment, then each such Credit Party severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Credit Party with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation.
(e) If any Credit Party shall fail to make any payment
required to be made by it pursuant to Section 2.4(b) or 2.8(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Credit Party to satisfy such Credit Party's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
Section 2.10 LIABILITY OF BORROWER; PRO RATA SHARE
(a) Notwithstanding anything in any Loan Document to the
contrary, each Borrower, severally and not jointly, shall be liable for the
repayment of the principal of, and interest on, Loans made to such Borrower,
including amounts advanced by the Administrative Agent to such Borrower on
behalf of a Lender which does not reimburse the Administrative Agent therefor
pursuant to Section 2.4(b) and no other Borrower shall have any liability
therefor. The parties hereto agree that with respect to all other amounts
payable to any Credit Party under the Loan Documents including commitment fees
and reimbursement for reasonable legal expenses, each Borrower shall be liable
only for its Pro Rata Share (as defined below) thereof. For purposes of this
Credit Agreement, "PRO RATA SHARE" shall mean, with respect to any amount
required to be paid by each Borrower based on its Pro Rata Share thereof, that
percentage of such amount set forth next to the name of such Borrower on Exhibit
D (as amended from time to time as provided below, the "PRO RATA SCHEDULE"),
provided that if no Event of Default shall have occurred and be continuing, the
Borrowers may change the Pro Rata Shares of the Borrowers and with respect to
amounts payable after receipt by the Administrative Agent and the Lenders of an
amended Pro Rata Schedule signed by an officer of each Borrower as long as the
sum of the Pro Rata Shares of all Borrowers shall at all times equal 100%.
(b) The obligations and liabilities of each Borrower under
this Credit Agreement and the other Loan Documents shall be several and not
joint. Notwithstanding anything to the contrary contained in this Credit
Agreement, the parties hereto acknowledge and agree that the sole source of
payment of the obligations and liabilities of each Borrower hereunder, including
the principal of, and interest on, each Loan made to any Borrower, the fees
payable by such Borrower pursuant to Section 3.3 and any other amounts payable
by such Borrower hereunder shall be the revenues and assets of such Borrower,
and not the revenues and assets of any other Borrower.
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ARTICLE 3 INTEREST, FEES, YIELD PROTECTION, ETC.
Section 3.1 INTEREST
(a) Revolving Loans comprising each Eurodollar Borrowing shall
bear interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Margin. Revolving Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Margin. Revolving Loans comprising each Federal Funds Borrowing shall bear
interest at the Federal Funds Rate plus the Applicable Margin. Each Swingline
Loan shall bear interest at the Federal Funds Rate plus the Applicable Margin,
provided that if (i) a Swingline Loan is outstanding for more than 7 days or
(ii) a participation in a Swing Line Loan is required to be made pursuant to
Section 2.8(d), such Swing Line Loan will thereafter bear interest at the
Alternate Base Rate plus the Applicable Margin.
(b) Notwithstanding anything to the contrary in this Section
3.1, if an Event of Default has occurred and is continuing with respect to a
Borrower, then, so long as such Event of Default is continuing, all principal of
and interest on each Loan to such Borrower and each fee and other amount not
paid when due by the defaulting Borrower shall bear interest, after as well as
before judgment, at a rate per annum equal to (i) in the case of principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in
Section 3.1(a) or (ii) in the case of any other amount, 2% plus the Federal
Funds Effective Rate.
(c) Accrued and unpaid interest on each Loan shall be payable
in arrears on each Interest Payment Date for such Loan, PROVIDED that (i)
interest accrued and unpaid pursuant to paragraph (b) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan,
accrued and unpaid interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued and unpaid interest on such Loan shall be payable on
the effective date of such conversion.
(d) All interest hereunder shall be computed on the basis of a
year of 360 days for the actual number of days elapsed (including the day a Loan
is made but excluding the date of repayment). The applicable Federal Funds Rate,
Federal Funds Effective Rate, Alternate Base Rate, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Administrative Agent in accordance with the
provisions of this Credit Agreement, and such determination shall be conclusive
absent manifest error.
Section 3.2 INTEREST ELECTIONS
(a) Each Borrowing (other than a Swingline Loan) initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Borrowing, shall have an initial Interest Period as
specified in such Borrowing Request. Thereafter, a Borrower may elect to convert
such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as
provided in this Section. A Borrower may elect different options with respect to
different portions of a Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing. Notwithstanding anything to the contrary herein contained (a) this
Section shall not apply to Swingline Borrowings which may not be converted or
continued, (b) no Eurodollar Borrowing or Alternate Base Rate Borrowing may be
converted into a Federal Funds Borrowing, and (c) each Federal Funds Borrowing
shall, unless repaid in full, be converted into an Alternate Base Rate Borrowing
on the 7th day following the making of the Revolving Loans comprising such
Borrowing.
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(b) To make an election pursuant to this Section, the
applicable Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.3 if such Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or fax to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
such Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.3:
(i) the Borrowing (including the identity of the Borrower
thereof) to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be a Floating
Rate Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar
Borrowing, the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition of the
term "Interest Period".
Notwithstanding anything to the contrary herein, each Interest Election Request
for a Eurodollar Borrowing shall be deemed to have selected an Interest Period
of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each requested Borrowing.
(e) If a Borrower fails to deliver a timely Interest Election
Request prior to the end of the Interest Period applicable thereto, then, unless
such Borrowing is repaid as provided herein at the end of such Interest Period,
such Borrowing shall be converted to a Alternate Base Rate Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the defaulting Borrower, then, so long as such
Event of Default is continuing, (i) no outstanding Borrowing with respect to
such Borrower may be converted to or continued as a Eurodollar Borrowing and
(ii) unless repaid, each Eurodollar Borrowing with respect to such Borrower
shall be converted to a Floating Rate Borrowing at the end of the Interest
Period applicable thereto.
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Section 3.3 FEES
(a) Each Borrower shall pay to the Administrative Agent for
the account of each Lender its Pro Rata Share of the commitment fee, which shall
accrue at a rate per annum equal to 0.15% on the daily amount of the unused
Commitment of such Lender during the period from and including the date on which
this Credit Agreement shall have become effective in accordance with Section
10.6 to but excluding the date on which such Commitment terminates, provided
that Swingline Borrowings will not be deemed a utilization of the Commitment for
commitment fee purposes. Accrued and unpaid commitment fees shall be payable in
arrears on the last day of March, June, September and December of each year,
each date on which the Commitments are permanently reduced and on the date on
which the Commitments terminate, commencing on the first such date to occur
after the date hereof. All commitment fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) Each Borrower shall pay to the Administrative Agent, for
its own account, fees and other amounts payable in the amounts and at the times
separately agreed upon in writing between such Borrower and the Administrative
Agent.
(c) All fees and other amounts payable under this Section 3.3
shall be paid on the dates due, in dollars in immediately available funds, to
the Administrative Agent for distribution, in the case of commitment fees, to
the Lenders. Fees and other amounts paid under the Loan Documents shall not be
refundable under any circumstances.
Section 3.4 ALTERNATE RATE OF INTEREST
If prior to the commencement of any Interest Period for a
Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that, by reason of circumstances
arising after the date hereof affecting the interbank Eurodollar market,
adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by any Lender that the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period
will not adequately and fairly reflect the cost to such Lender of making or
maintaining its Loan included in such Borrowing for such Interest Period because
of (x) any change since the date hereof in any applicable law or governmental
rule, regulation, order or directive (whether or not having the force of law) or
in the interpretation or administration thereof or (y) other circumstances
arising after the date hereof affecting such Lender or the interbank Eurodollar
market;
24
then the Administrative Agent shall give notice thereof to the Borrowers and the
Lenders by telephone or fax as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective,
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as a Floating Rate Borrowing as elected by the
applicable Borrower. Each of the Administrative Agent and each Lender agrees
that it shall promptly notify the Borrowers and, in the case of any such Lender,
the Administrative Agent, if any such circumstances cease to exist.
Section 3.5 INCREASED COSTS; ILLEGALITY
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Credit Party (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Credit Party or the London interbank
market any other condition affecting any Credit Party's obligation to make
Eurodollar Loans or any participation therein,
and the result of any of the foregoing shall be to increase the cost to such
Credit Party of making or maintaining any Eurodollar Loan or to reduce the
amount of any sum received or receivable by such Credit Party hereunder (whether
of principal, interest or otherwise) with respect to such Loan by an amount
deemed by such Credit Party to be material, then each applicable Borrower will
pay to such Credit Party its Pro Rata Share of such additional amount or amounts
as will compensate such Credit Party for such additional costs incurred or
reduction suffered.
(b) If any Credit Party determines in good faith that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Credit Party's capital or on the capital of
such Credit Party's holding company, if any, as a consequence of this Credit
Agreement or the Loans made by such Credit Party hereunder to a level below that
which such Credit Party or such Credit Party's holding company could have
achieved but for such Change in Law (taking into consideration such Credit
Party's policies and the policies of such Credit Party's holding company with
respect to capital adequacy), then from time to time each Borrower will pay to
such Credit Party its Pro Rata Share of such additional amount or amounts as
will compensate such Credit Party or such Credit Party's holding company for any
such reduction suffered to the extent that such Credit Party reasonably
determines such increase in capital requirements is allocable to its obligations
hereunder using reasonable averaging and attribution methods.
25
(c) A certificate of a Credit Party setting forth supporting
calculations in reasonable detail demonstrating the basis of the additional
amount or amounts necessary to compensate such Credit Party or its holding
company, as applicable, as specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrowers and shall be conclusive absent manifest
error. Each Borrower shall pay such Credit Party its Pro Rata Share of the
amount shown as due on any such certificate within ten days after receipt
thereof. In determining such additional amounts of compensation, each Lender
will act reasonably and in good faith.
(d) Failure or delay on the part of any Credit Party to demand
compensation pursuant to this Section shall not constitute a waiver of such
Credit Party's right to demand such compensation; provided that no Borrower
shall be required to compensate a Credit Party pursuant to this Section for any
increased costs or reductions incurred more than 90 days prior to the date that
such Credit Party notifies the Borrowers of the Change in Law giving rise to
such increased costs or reductions and of such Credit Party's intention to claim
compensation therefor; and provided further that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the 90 day
period referred to above shall be extended to include the period of retroactive
effect thereof.
(e) Notwithstanding any other provision of this Credit
Agreement, if, after the date of this Credit Agreement, any Change in Law shall
make it unlawful for any Lender to make or maintain any Eurodollar Loan or to
give effect to its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by written notice to the Borrowers and to the
Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will
not thereafter (for the duration of such unlawfulness) be made by such Lender
hereunder (or be continued for additional Interest Periods and Floating Rate
Loans will not thereafter (for such duration) be converted into Eurodollar
Loans), whereupon any request for a Eurodollar Borrowing or to convert a
Floating Rate Borrowing to a Eurodollar Borrowing or to continue a Eurodollar
Borrowing, as applicable, for an additional Interest Period shall, as to such
Lender only, be deemed a request for a Floating Rate Loan (or a request to
continue a Floating Rate Loan as such for an additional Interest Period or to
convert a Eurodollar Loan into a Floating Rate Loan, as applicable), unless such
declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding
Eurodollar Loans made by it be converted to a Floating Rate Loan, in which event
all such Eurodollar Loans shall be automatically converted to such Floating Rate
Loan, as of the effective date of such notice as provided in the last sentence
of this paragraph.
In the event any Lender shall exercise its rights under (i) or (ii) of this
paragraph, all payments and prepayments of principal that would otherwise have
been applied to repay the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender shall instead be applied
to repay the Floating Rate Loans made by such Lender in lieu of, or resulting
from the conversion of, such Eurodollar Loans, as applicable. For purposes of
this paragraph, a notice to the Borrowers by any Lender shall be effective, as
to each Eurodollar Loan made by such Lender, if lawful, on the last day of the
Interest Period currently applicable to such Eurodollar Loan; in all other cases
such notice shall be effective on the date of receipt by the Borrowers.
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Section 3.6 BREAK FUNDING PAYMENTS
In the event of (a) the payment or prepayment (voluntary or
otherwise) of any principal of any Eurodollar Loan other than on the last day of
an Interest Period applicable thereto or Swingline Loan other than on the
maturity thereof (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto or (c) the failure to borrow, convert, continue or
prepay any Eurodollar Loan or Swingline Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.5(c) and is revoked in accordance therewith), then, in any such
event, the Borrower of such Loan shall, upon the Lender's written request which
request shall set forth the basis for requesting such compensation (that is,
whether under clauses (a), (b) or (c) of this Section 3.6), compensate each
Lender for the reasonable loss, cost and expense incurred by such Lender,
including any loss incurred in obtaining, liquidating or employing deposits from
third parties, but excluding loss of margin for the period after any such
payment, prepayment, conversion, or failure to borrow, convert, continue or
prepay, attributable to such event, unless such event was caused by a default by
such Lender. A certificate of any Lender setting forth such Lender's reasonable
good faith determination of the amount or amounts that such Lender is entitled
to receive pursuant to this Section shall be delivered to the applicable
Borrower and shall be conclusive absent manifest error. The applicable Borrower
shall pay such Lender the amount shown as due on any such certificate within ten
days after receipt thereof.
Section 3.7 TAXES
(a) Any and all payments by or on account of any obligation of
any Borrower hereunder and under any other Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes,
provided that, if such Borrower shall be required to deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that, after making all required deductions (including
deductions applicable to additional sums payable under this Section), the
applicable Credit Party receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, each Borrower shall pay its Pro Rata Share of
any Other Taxes to the relevant Governmental Authority in accordance with
applicable law.
(c) Each Borrower, severally and not jointly, shall indemnify
each Credit Party, within 30 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by such Credit Party on or
with respect to any payment by or on account of any obligation of such Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to a Borrower by a Credit Party, or by
the Administrative Agent on its own behalf or on behalf of a Credit Party, shall
be conclusive absent manifest error.
27
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which a
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Credit Agreement shall deliver to the Borrowers
(with a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation prescribed by
applicable law or reasonably requested by the Borrowers as will permit such
payments to be made without withholding or at a reduced rate.
Section 3.8 MITIGATION OBLIGATIONS
(a) If any Lender requests compensation under Section 3.5, or
if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.7,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans (or any participation therein) hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.5
or 3.7, as the case may be, in the future and (ii) would not subject such Lender
to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. Each Borrower shall pay its Pro Rata Share of all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 3.5(b),
or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.7, in
an aggregate amount in excess of $10,000, then such Borrower at its sole expense
(including the fees referred to in Section 10.4(b)) and at the sole effort of
such Borrower, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 10.4), all its interests,
rights and obligations under the Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) such Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Swingline Lender), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in Swingline Loans,
accrued and unpaid interest thereon, accrued and unpaid fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the applicable Borrowers
(in the case of all such other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 3.5(b) or
payments required to be made pursuant to Section 3.7, such assignment should
result in a reduction in such compensation or payments in the future. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling a Borrower to require such assignment and delegation cease to apply.
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ARTICLE 4 REPRESENTATIONS AND WARRANTIES
In order to induce the Credit Parties to enter into this
Credit Agreement and make the Loans, each Borrower, severally and not jointly,
makes the following representations and warranties to the Credit Parties (it
being agreed that each Borrower represents and warrants only to matters with
respect to itself):
Section 4.1 ORGANIZATION AND POWER
Such Borrower (i) is duly organized or formed and validly
existing in good standing under the laws of the jurisdiction of its organization
and (ii) is duly qualified to do business and is in good standing in each
jurisdiction in which the failure to be so authorized could reasonably be
expected to have a Material Adverse Effect. Such Borrower has all requisite
power and authority to own its property and to carry on its business as now
conducted.
Section 4.2 AUTHORITY AND EXECUTION
Such Borrower has full legal power and authority to enter
into, execute, deliver and perform the terms of the Loan Documents, all of which
have been duly authorized by all proper and necessary corporate or trust action,
as the case may be, and are in full compliance with such Borrower's limited
liability company agreement or Declaration of Trust, as the case may be, and
By-Laws. Such Borrower has duly executed and delivered the Loan Documents to
which it is a party.
Section 4.3 BINDING AGREEMENT
The Loan Documents will, upon execution and delivery,
constitute the valid and legally binding obligations of such Borrower
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (whether enforcement is
sought by proceedings in equity or at law).
Section 4.4 LITIGATION
There are no actions, suits or proceedings at law or in equity
or by or before any Governmental Authority (whether purportedly on behalf of
such Borrower) pending or, to the knowledge of such Borrower, threatened against
it or maintained by it which may affect the property or rights of such Borrower,
which (i) could reasonably be expected to have a Material Adverse Effect, (ii)
are not purely frivolous and call into question the validity or enforceability
of, or otherwise seek to invalidate, any Loan Document, or (iii) might,
individually or in the aggregate, materially adversely affect any of the
transactions contemplated by any Loan Document.
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Section 4.5 APPROVALS AND CONSENTS
No consent, authorization or approval of, filing with, notice
to, or exemption by, the shareholders of any of such Borrower, any Governmental
Authority or any other Person is required to authorize, or is required in
connection with, the execution and delivery by such Borrower of, and the
performance by such Borrower of its obligations under, the Loan Documents or is
required as a condition to the validity or enforceability of the Loan Documents
with respect to or against such Borrower. No provision of any applicable
statute, law (including any applicable usury or similar law), rule or regulation
of any Governmental Authority will prevent the execution and delivery by such
Borrower of, or performance by such Borrower of its obligations under, or affect
the validity with respect to or against such Borrower of, the Loan Documents.
Section 4.6 NO DEFAULTS; NO LEGAL BAR
Such Borrower is not in default under any mortgage, indenture,
contract, agreement, judgment, decree or order to which it is a party or by
which it or any of its property is bound, which defaults, taken as a whole,
could reasonably be expected to have a Material Adverse Effect. The execution,
delivery or performance by such Borrower of the terms of the Loan Documents, the
Borrowings hereunder and the use by such Borrowers of the proceeds thereof will
not (i) violate any statutes or regulations, including the Investment Company
Act, of any Governmental Authority applicable to such Borrower or (ii)
constitute a default under, conflict with, require any consent under (other than
consents which have been obtained), or result in the creation or imposition of,
or obligation to create, any Lien upon the property of such Borrower pursuant to
the terms of any such mortgage, indenture, contract, agreement, judgment, decree
or order, which defaults, conflicts and consents, if not obtained, could
reasonably be expected to have a Material Adverse Effect.
Section 4.7 REGULATED INVESTMENT COMPANY STATUS; TAXES
Each Borrower qualifies as a Regulated Investment Company.
Such Borrower has filed or caused to be filed all tax returns required to be
filed and has paid, or has made adequate provision for the payment of, all Taxes
shown to be due and payable on said returns or in any assessments made against
it (other than those being contested in good faith and by appropriate
proceedings diligently conducted, and for which adequate reserves have been set
aside in accordance with GAAP) which, if not so filed or paid, could reasonably
be expected to result in a Material Adverse Effect, and no tax Liens (other than
those permitted by Section 7.2(b)) have been filed against such Borrower. The
charges, accruals and reserves on the books of each such Borrower with respect
to all federal, state, local and other Taxes are adequate except to the extent
the failure so to be could not reasonably be expected to have a Material Adverse
Effect, and such Borrower knows of any unpaid assessment which is due and
payable against it or any claims being asserted against it which could
reasonably be expected to have a Material Adverse Effect, except such thereof as
are being contested in good faith and by appropriate proceedings diligently
conducted, and for which adequate reserves have been set aside in accordance
with GAAP.
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Section 4.8 COMPLIANCE
Such Borrower is not in default with respect to any judgment,
order, writ, injunction, decree or decision of any Governmental Authority which
default could reasonably be expected to have a Material Adverse Effect. Such
Borrower is complying in all material respects with all applicable statutes and
regulations, including the Investment Company Act, and of all Governmental
Authorities, a violation of which could reasonably be expected to have a
Material Adverse Effect.
Section 4.9 LIMITATIONS ON BORROWING
Such Borrower is registered under the Investment Company Act
as a closed-end management investment company. Such Borrower is not subject to
any statute, rule, regulation or organizational or offering document which
prohibits or limits the incurrence of Indebtedness under the Loan Documents,
except for the limitations set forth in the Investment Company Act, state
securities laws to the extent applicable, and such Borrower's Prospectus.
Section 4.10 PROPERTY
Such Borrower has good and marketable title to all of its
property, with respect to which the absence of such marketable title could
reasonably be expected to result in a Material Adverse Effect, subject to no
Liens other than Permitted Liens.
Section 4.11 FEDERAL RESERVE REGULATIONS; USE OF LOAN PROCEEDS
Except for the Federal Reserve Form to be executed and
delivered by such Borrower, no filing or other action is required under the
provisions of Regulations T, U or X in connection with the execution and
delivery by such Borrower of this Credit Agreement and neither the making of the
Loans in accordance with this Credit Agreement nor the use by such Borrowers of
the proceeds thereof, will violate or be inconsistent with the provisions of
Regulations T, U or X.
Section 4.12 PENSION PLANS; MULTIEMPLOYER PLANS
Neither such Borrower nor any ERISA Affiliate thereof
maintains, or has at any time maintained, any Plan or Multiemployer Plan.
Section 4.13 NO MATERIAL ADVERSE CHANGE
Since the applicable Measurement Date, such Borrower has
conducted its businesses only in the ordinary course and there has been no
material adverse change in the business, assets or condition, financial or
otherwise, of such Borrower.
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Section 4.14 MATERIAL AGREEMENTS
Each of (i) the custodian agreements of such Borrower is in
full force and effect in all material respects and (ii) all other agreements
between such Borrower, and the Investment Manager are in full force and effect,
except to the extent that failure of such other agreements to be in full force
and effect could not reasonably be expected to have a Material Adverse Effect.
Section 4.15 FINANCIAL CONDITION
The statement of assets and liabilities of such Borrowers as
of the applicable Measurement Date and the related statements of operations and
changes in net assets for the fiscal year then ended, copies of which, certified
by independent public accountants, have heretofore been delivered to each
Lender, fairly present, in all material respects, the financial position of such
Borrower as of such date and the results of its operations for such period in
conformity with GAAP.
Section 4.16 NO SUBSIDIARIES
Such Borrower has no Subsidiaries or any equity investment or
interest in any other Person (other than portfolio securities which may have
been acquired in the ordinary course of business).
Section 4.17 OFFERINGS IN COMPLIANCE WITH SECURITIES LAWS
Such Borrower has not issued any of its securities in
violation of any Federal or State securities laws applicable thereto, except to
the extent that any such violation could not reasonably be expected to have a
Material Adverse Effect.
Section 4.18 INVESTMENT POLICIES
Such Borrower is in compliance in all material respects with
all of its Investment Policies, except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect.
Section 4.19 PROSPECTUSES
Such Borrower is in compliance in all material respects with
its Prospectus, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
Section 4.20 NO MISREPRESENTATION
No representation or warranty contained in any Loan Document
and no certificate or report from time to time furnished by such Borrower, to
the Administrative Agent or any Lender in connection with the transactions
contemplated thereby, contains or will contain a misstatement of material fact,
or, to the best knowledge of such Borrower, omits or will omit to state a
material fact required to be stated in order to make the statements therein
contained not misleading in the light of the circumstances under which made.
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Section 4.21 AFFILIATE STATUS
To the knowledge of such Borrower, it is not an "Affiliated
Person", within the meaning of the Investment Company Act, of any Lender.
ARTICLE 5 CONDITIONS
Section 5.1 EFFECTIVE DATE
The obligations of the Lenders to make Loans hereunder shall
not become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 10.2):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this Credit
Agreement signed on behalf of such party or (ii) written evidence satisfactory
to the Administrative Agent (which may include fax transmission of a signed
signature page of this Credit Agreement) that such party has signed a
counterpart of this Credit Agreement.
(b) The Administrative Agent (or its counsel) shall have
received a Note for each Lender, dated the Effective Date, executed by a duly
authorized officer of each Borrower.
(c) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent, and the Lenders and
dated the Effective Date) from Stroock & Stroock & Xxxxx LLP, substantially in
the form of Exhibit B. The Borrowers hereby request such counsel to deliver such
opinion.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by an officer of each Borrower,
attaching such documents as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
each Borrower, the authorization of the Transactions and any other legal matters
relating to the Borrowers, the Loan Documents or the Transactions.
(e) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a Vice
President or a Financial Officer of each Borrower, certifying that (i) the
representations and warranties of such Borrower set forth in each Loan Document
to which it is a party are true and correct in all material respects on and as
of the Effective Date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects on and as
of such earlier date and (ii) as of the Effective Date, no Default shall have
occurred and be continuing.
(f) The Administrative Agent shall have received all fees and
other amounts due and payable by the Borrowers on or prior to the Effective
Date, including, to the extent invoiced, reimbursement or payment of all
reasonable out-of-pocket expenses required to be reimbursed or paid by the
Borrowers hereunder.
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(g) The Administrative Agent shall have received, with a copy
for each Lender, true and correct copies, certified as to authenticity by each
Borrower, of the most recent Prospectus for such Borrower, the current effective
Registration Statement for such Borrower, the most recent annual and semiannual
financial reports for such Borrower and such other documents or instruments as
may be reasonably requested by the Administrative Agent, including a copy of any
debt instrument, security agreement or other material contract to which such
Borrower may be a party.
(h) The Lenders shall be satisfied that the Loans and the use
of proceeds thereof comply in all respects with Regulation U. To the extent
required by Regulation U, the Administrative Agent shall have received a copy of
Federal Reserve Form U-1, duly executed and delivered by each Borrower and
completed for delivery to each Lender, in form acceptable to the Administrative
Agent.
(i) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a Vice
President or a Financial Officer of each Borrower, certifying that after giving
effect to the Transactions on the Effective Date, such Borrower shall not have
outstanding any Indebtedness, other than (A) Indebtedness incurred under the
Loan Documents and (B) other Indebtedness permitted by Section 7.1.
The Administrative Agent shall notify the Borrowers and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Section 5.2 EACH CREDIT EVENT
The obligation of each Lender to make a Loan to a Borrower on
the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) The representations and warranties of such Borrower set
forth in each Loan Document to which it is a party shall be true and correct in
all material respects on and as of the date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default with respect to such Borrower which is deemed to
constitute a Default of such Borrower under Article 8 shall have occurred and be
continuing.
(c) The Administrative Agent shall have received a Borrowing
Request or a request for a Swingline Loan signed by such Borrower.
(d) The Lenders shall be satisfied that the Loans and the use
of proceeds thereof comply in all respects with Regulation U. To the extent
required by Regulation U, the Administrative Agent shall have received (i) a
copy of Federal Reserve Form U-1, duly executed and delivered by each Borrower
and completed for delivery to each Lender, in form acceptable to the
Administrative Agent, or (ii) a current list of Margin Stock with respect to
each Borrower, in form acceptable to the Administrative Agent and in compliance
with Section 221.3(c)(2) of Regulation U.
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(e) The Administrative Agent shall have received such other
documentation and assurances as shall be reasonably required by it in connection
herewith.
Each Borrowing shall be deemed to constitute a representation and warranty by
such Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
ARTICLE 6 AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees and other amounts payable by
the Borrowers under the Loan Documents shall have been paid in full, each
Borrower, severally and not jointly, covenants and agrees with the Lenders that
(it being agreed that each Borrower covenants only to matters with respect to
itself):
Section 6.1 FINANCIAL STATEMENTS AND OTHER INFORMATION
Such Borrower shall furnish or cause to be furnished to the
Administrative Agent and each Lender:
(a) As soon as available, but in any event within 75 days
after the end of each fiscal year of such Borrower, a copy of such Borrower's
Statement of Assets and Liabilities as at the end of such fiscal year, together
with the related Schedule of Investments and Statements of Operations and
Changes in Net Assets as of and through the end of such fiscal year. Each such
Statement of Assets and Liabilities and the related Schedule of Investments and
Statements of Operations and Changes in Net Assets shall be certified without
qualification by independent public accountants, which certification shall (i)
state that the examination by such independent public accountants in connection
with such financial statements has been made in accordance with generally
accepted auditing standards and (ii) include the opinion of such independent
public accountants that such financial statements have been prepared in
conformity with GAAP, except as otherwise specified in such opinion;
(b) As soon as available, but in any event not later than 60
days after the end of the first semiannual accounting period in each fiscal year
of each Borrower, a copy of such Borrower's Statement of Assets and Liabilities
as at the end of such semiannual period, together with the related Schedule of
Investments and Statements of Operations, Changes in Net Assets for such period;
(c) Concurrently with each delivery of the information
required under paragraphs (a) and/or (b) above, and within 60 days of each of
the first and third quarterly accounting periods of each fiscal year, a
Compliance Certificate as of the last day of the relevant fiscal period signed
on behalf of each Borrower.
(d) As soon as practicable, a copy of each general mailing to
the shareholders of such Borrower to the extent such mailing includes a
Prospectus or any material change in the terms thereof, including any material
change in the investment objectives or any change in (i) the Investment
Policies, (ii) restrictions on borrowings, or (iii) the identity of the
directors or executive officers of such Borrower;
35
(e) Prompt written notice of any contest referred to in
Sections 6.6 or 6.7;
(f) If, at the close of business on the last day of any week,
there are outstanding Borrowings to any Borrower, such Borrower shall deliver to
the Administrative Agent, no later than the next Business Day, a certificate of
an officer of such Borrower, setting forth a reasonably detailed calculation of
the Asset Coverage Ratio of such Borrower as of the last day of such week;
(g) Promptly after the execution thereof, copies of all
material amendments to all investment advisory contracts and contracts with any
principal underwriter and any new investment advisory contracts and contracts
with any principal underwriter entered into after the Effective Date;
(h) Prompt written notice in the event that such Borrower
decides to seek the approval of its board of directors and, if necessary, its
shareholders to effect a change in any of its Investment Policies;
(i) As soon as available, but in any event no later than 10
days after the end of each month, a statement setting forth the name of such
Borrower and such Borrower's Net Asset Value as of the end of such month, in the
form similar to those customarily prepared by such Borrower's management for
internal use;
(j) Promptly upon the determination that any Loan will not be
repaid within 7 days of the borrowing date thereof, and in no event later than 8
days after such borrowing date, a current list of Margin Stock owned by the
Borrower of such Loan, in form acceptable to the Administrative Agent and in
compliance with Section 221.3(c)(2)(iv) of Regulation U;
(k) By 12:00 noon, New York City time, of each Business Day, a
statement (in spreadsheet form) of the total asset value and Net Asset Value of
such Borrower's portfolio as of the close of business on the preceding Business
Day if such Borrower had a Loan outstanding on such preceding Business Day; and
(l) Such other information as the Administrative Agent or any
Lender may reasonably request from time to time.
Section 6.2 NOTICE OF MATERIAL EVENTS
Such Borrower shall furnish or cause to be furnished to the
Administrative Agent and each Lender prompt written notice of the following,
together with a statement of a Financial Officer or other executive officer of
such Borrower setting forth in reasonable detail of the event or development
requiring such notice and, if applicable, any action taken or proposed to be
taken with respect thereto:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any Governmental Authority against or affecting such
Borrower or any Affiliate thereof that, if adversely determined, could in the
good faith opinion of such Borrower reasonably be expected to result in a
Material Adverse Effect; and
36
(c) the occurrence of any other development that has resulted,
or could reasonably be expected to result, in a Material Adverse Effect.
Section 6.3 LEGAL EXISTENCE
Such Borrower shall maintain its legal existence in good
standing in the jurisdiction of its organization and in each other jurisdiction
in which the failure so to do could reasonably be expected to have a Material
Adverse Effect.
Section 6.4 REGULATED INVESTMENT COMPANY
Such Borrower shall maintain its status as an investment
company or a series or portfolio of an investment company registered under the
Investment Company Act and its qualification as a Regulated Investment Company
under the Code.
Section 6.5 INSURANCE
Such Borrower shall maintain insurance with financially sound
insurance carriers in at least such amounts and against at least such risks as
are usually insured against in the same general area by entities engaged in the
same or a similar business or as may otherwise be required by the Securities and
Exchange Commission or any successor or analogous Governmental Authority
(including fidelity bond coverage as shall be required by Rule 17g-1 promulgated
under the Investment Company Act or any successor provision and errors and
omissions insurance); and furnish to each Lender, upon written request, full
information as to the insurance carried.
Section 6.6 PAYMENT OF INDEBTEDNESS AND PERFORMANCE OF
OBLIGATIONS
Such Borrower shall pay and discharge when due all lawful
Indebtedness, obligations and claims for labor, materials and supplies or
otherwise which, if unpaid, could reasonably be expected to (i) have a Material
Adverse Effect or (ii) become a Lien upon its property (other than a Permitted
Lien), unless and to the extent only that the validity of such Indebtedness,
obligation or claim shall be contested in good faith and by appropriate
proceedings diligently conducted by such Borrower, and provided further that
such reserve or other appropriate provision as shall be required in accordance
with GAAP shall have been made therefor.
Section 6.7 OBSERVANCE OF LEGAL REQUIREMENTS
Such Borrower shall observe and comply in all material
respects with all laws (including the Investment Company Act and the Code),
ordinances, orders, judgments, rules, regulations, certifications, franchises,
permits, licenses, directions and requirements of all Governmental Authorities,
which may then be applicable to such Borrower, a violation of which could
reasonably be expected to have a Material Adverse Effect, except such thereof as
shall be contested in good faith and by appropriate proceedings diligently
conducted by such Borrower, provided that such reserve or other appropriate
provision as shall be required in accordance with GAAP shall have been made
therefor.
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Section 6.8 BOOKS AND RECORDS; VISITATION
Such Borrower shall (a) keep proper books of record and
account in which complete, true and correct entries in conformity with GAAP and
all material requirements of law shall be made of all material dealings and
transactions in relation to its business and activities, (b) upon reasonable
notice, permit representatives of the Administrative Agent and each Lender to
visit the offices of such Borrower and to discuss the operations and financial
condition of such Borrower with the officers thereof and with the Investment
Manager, and (c) upon the reasonable request of Required Lenders, deliver to the
Administrative Agent and each Lender a list of assets of such Borrower.
Section 6.9 COMPLIANCE WITH PROSPECTUS
Such Borrower shall comply at all times with the limitations
in the Prospectus concerning investment concentrations and investment
objectives, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect.
Section 6.10 PURPOSE OF LOANS
Such Borrower shall use the proceeds of the Loans received by
it for temporary, emergency or extraordinary purposes, including to enable such
Borrower to finance temporarily the repurchase or redemption of shares of, or
other interests in, such Borrower at the request of the holders of such shares
or other interests, as the case may be. Without limiting the foregoing, no
Borrower will, directly or indirectly, use any part of such proceeds for any
purpose which would violate any provision of any applicable statute, regulation,
order or restriction. If requested by any Lender or the Administrative Agent
from time to time, such Borrower and each of its related Borrowers will furnish
to the Administrative Agent and each Lender a statement in conformity with the
requirements of Federal Reserve Form U-1 referred to in Regulation U.
ARTICLE 7 NEGATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees and other amounts payable by
the Borrowers under the Loan Documents shall have been paid in full, each
Borrower, severally and not jointly, covenants and agrees with the Lenders that
(it being agreed that each Borrower covenants only to matters with respect to
itself):
Section 7.1 INDEBTEDNESS
Such Borrower will not create, incur, assume or suffer to
exist any liability for Indebtedness, except (i) Indebtedness in respect of the
Loan Documents, (ii) Indebtedness of a Borrower incurred in the ordinary course
of business or permitted to be incurred in accordance with the Investment
Policies of such Borrower as described in its Prospectus, and (iii) Indebtedness
consisting of overdrafts as may arise under such Borrower's custodian agreement.
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Section 7.2 LIENS
Such Borrower will not create, incur, assume or suffer to
exist any Lien upon any of its property or assets, whether now owned or
hereafter acquired, except:
(a) Liens in respect of Indebtedness permitted under Section
7.1;
(b) Liens for Taxes, assessments or similar charges incurred
in the ordinary course of business which are not delinquent or which are being
contested in good faith and by appropriate proceedings diligently conducted, and
for which adequate reserves have been set aside in accordance with GAAP,
provided that enforcement of such Liens is stayed pending such contest;
(c) Liens imposed by law created in the ordinary course of
business for amounts not yet due or which are being contested in good faith and
by appropriate proceedings diligently conducted, and for which adequate reserves
have been set aside in accordance with GAAP, PROVIDED that enforcement of such
Liens is stayed pending such contest;
(d) Liens arising out of judgments or decrees which are being
contested in good faith and by appropriate proceedings diligently conducted, and
for which adequate reserves have been set aside in accordance with GAAP,
PROVIDED that enforcement thereof is stayed pending such contest;
(e) Liens in respect of obligations (other than for borrowed
money) arising from any (i) repurchase, reverse repurchase or securities lending
agreement, (ii) option contract, futures contract, forward contract, (iii)
contract for the delayed delivery of securities, or (iv) Hedging Agreement;
PROVIDED that it is incurred in the ordinary course of business and in
accordance with the Investment Policies of the relevant Borrower as described in
its Prospectus; and
(f) Liens arising in the ordinary course of business under
custodian agreements entered into by such Borrower.
Section 7.3 FUNDAMENTAL CHANGES
Such Borrower will not consolidate or merge into or with any
Person, sell, lease or otherwise transfer, directly or indirectly, all or
substantially all of its property, except that a Borrower may consolidate or
merge with another Borrower, PROVIDED that (i) no Default would exist before or
after giving effect thereto, (ii) the Administrative Agent shall have received
15 Business Days' notice thereof, and (iii) the Administrative Agent shall have
received such documents, certificates and opinions as it may request, including
copies of the agreements of merger or consolidation.
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Section 7.4 RESTRICTED PAYMENTS
Such Borrower will not declare or pay any dividends or similar
payments in respect of its equity interests if, immediately before or after
giving effect thereto, an Event of Default with respect to such Borrower shall
or would exist, except to the extent required in order to qualify as a Regulated
Investment Company and to otherwise minimize or eliminate federal or state
income taxes payable by such Borrower.
Section 7.5 INVESTMENT POLICIES
Except as set forth on Schedule 7.5, such Borrower will not
(i) make or maintain any investments other than as described in or permitted by
such Borrower's Prospectus or (ii) amend or otherwise modify its Investment
Policies or any other policies related to investment objectives or the
incurrence or assumption of Indebtedness.
Section 7.6 AMENDMENT OF CERTAIN DOCUMENTS
Such Borrower will not amend or otherwise modify its
certificate of formation or limited liability company agreement or declaration
of trust or other organizational documents in any way which would adversely
affect the Credit Parties.
Section 7.7 FISCAL YEAR
Such Borrower will not change its fiscal year.
Section 7.8 CHANGE IN ACCOUNTING PRINCIPLES
Subject to Section 1.3, such Borrower will not change or
permit any change in the accounting principles except as required by GAAP, if
such change would have a Material Adverse Effect.
Section 7.9 SUBSIDIARIES
Such Borrower will not create or acquire any Subsidiary.
Section 7.10 CHANGE IN INVESTMENT MANAGER
Such Borrower will not change the Investment Manager.
Section 7.11 ASSET COVERAGE RATIO
Such Borrower will not permit its Asset Coverage Ratio to be
less than 400% at any time or permit any such Borrower's Borrowings to exceed
the limits set forth in such Borrower's Prospectus or Investment Policies.
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ARTICLE 8 EVENTS OF DEFAULT
Section 8.1 EVENTS OF DEFAULT
Each of the following shall constitute an "Event of Default":
(a) a Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) a Borrower shall fail to pay any interest on any Loan or
any fee, commission or any other amount (other than an amount referred to in
paragraph (a) of this Section 8.1) payable under any Loan Document, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of a Borrower in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with any Loan Document or any amendment or modification thereof or
waiver thereunder, shall prove to have been incorrect in any material respect
when made or deemed made;
(d) a Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Sections 6.3, 6.4 or 6.10 or in Article 7;
(e) a Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Credit Agreement (other than those
specified in paragraphs (a), (b) or (d) of this Section 8.1), and such failure
shall continue unremedied for a period of 30 days after such Borrower shall have
obtained knowledge thereof;
(f) a Borrower shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable (after giving
effect to any applicable grace period);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity, provided that this paragraph (g) shall not
apply to secured Indebtedness that becomes due solely as a result of the
voluntary sale or transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of a Borrower or its debts, or of a substantial part of
its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for a Borrower or for a substantial part of its assets; and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;
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(i) Borrower shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in paragraph (h) of this Section 8.1, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for a Borrower or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) Borrower shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of the Threshold Amount shall be rendered against any
Borrower and the same shall remain undischarged for a period of 60 consecutive
days during which execution shall not be effectively stayed, vacated or bonded
or any action shall be legally taken by a judgment creditor to attach or levy
upon any assets of a Borrower to enforce any such judgment; or
(l) any Loan Document shall cease, for any reason, to be in
full force and effect, or with respect to a Borrower, such Borrower shall so
assert in writing or shall disavow any of its obligations thereunder.
Section 8.2 RESULTS OF DEFAULTS AND EVENTS OF DEFAULT
Notwithstanding any other provision herein to the contrary, a
Default or Event of Default with respect to one Borrower shall not, in and of
itself, constitute a Default or Event of Default (as the case may be) with
respect to any other Borrower.
Section 8.3 REMEDIES
If any Event of Default shall occur and be continuing with
respect to a Borrower then, and in every such event (other than an event
described in paragraph (h) or (i) of Section 8.1), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to such Borrower, take either
or both of the following actions, at the same or different times: (i) declare
the Commitments with respect to such Borrower terminated, and thereupon such
Commitments shall terminate immediately and/or (ii) declare the Loans of such
Borrower then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of such Loans so
declared to be due and payable, together with accrued and unpaid interest
thereon and all fees and other obligations of such Borrower accrued and unpaid
under the Loan Documents, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by each Borrower; and in case of any event described in paragraph
(h) or (i) of Section 8.1, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the affected Borrower accrued and unpaid
under the Loan Documents, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
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ARTICLE 9 THE ADMINISTRATIVE AGENT
Each Lender hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with any Borrower or any Borrower or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 10.2), and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrowers that is communicated to or obtained by the Person
serving as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by a Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth therein, (iv) the validity, enforceability, effectiveness or genuineness
thereof or any other agreement, instrument or other document, or (v) the
satisfaction of any condition set forth in Article 5 or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
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The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be genuine and correct and made by the proper
Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrowers), independent public accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent, PROVIDED that no such delegation shall
serve as a release of the Administrative Agent or waiver by any Borrower,
individually or on behalf of its related Borrowers, of any rights hereunder. The
Administrative Agent and any such sub-agent may perform any and all their duties
and exercise their rights and powers through their respective Related Parties.
The exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrowers. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrowers, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and in
consultation with the Borrowers, appoint a successor Administrative Agent which
shall be a commercial bank or trust company with capital and surplus of not less
than $500,000,000 with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrowers to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrowers and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 10.3 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Credit Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon any Loan
Document, any related agreement or any document furnished thereunder.
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ARTICLE 10 OTHER PROVISIONS
Section 10.1 NOTICES
Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by fax, as follows:
(a) if to any Borrower, to it at Two Galleria Tower, 00000
Xxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000, Attention of M. Xxxxx
Xxxxxxxxx, (Telephone No. (000) 000-0000; Fax No. (000) 000-0000);
(b) if to the Administrative Agent, to it at Xxx Xxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx X. Morale, (Telephone: (212)
000-0000; Fax No. (000) 000-0000), with a copy to The Bank of Nova Scotia at Xxx
Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxx (Telephone
No. (000) 000-0000; Fax No. (000) 000-0000); and
(c) if to any other Credit Party, to it at its address (or fax
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or fax number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Credit Agreement shall be deemed to have been given on the date of
receipt.
Section 10.2 WAIVERS; AMENDMENTS
(a) No failure or delay by any Credit Party in exercising any
right or power under any Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Credit Parties under the Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document or
consent to any departure by any Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether any Credit Party may have had notice or knowledge
of such Default at the time.
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(b) Neither this Credit Agreement nor any provision hereof may
be waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrowers and the Required Lenders or by the
Borrowers and the Administrative Agent with the consent of the Required Lenders,
PROVIDED that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan, or reduce the rate of interest thereon, or reduce any fees or other
amounts payable under the Loan Documents, or reduce the amount of any scheduled
reduction of any Commitment, without the written consent of each Credit Party
affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan, or any interest thereon, or any fees or other amounts
payable under the Loan Documents, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of reduction or expiration of any
Commitment, without the written consent of each Credit Party affected thereby,
(iv) change any provision hereof in a manner that would alter the pro rata
sharing of payments required thereby, without the written consent of each Credit
Party, or (v) change any of the provisions of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender, and provided, further, that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent or the Swingline Lender hereunder without the prior written consent of the
Administrative Agent or the Swingline Lender, as the case may be.
Section 10.3 EXPENSES; INDEMNITY; DAMAGE WAIVER
(a) Each Borrower shall pay its Pro Rata Share of all
reasonable out of pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Credit Agreement or any amendments, modifications or waivers of the provisions
of any Loan Document (whether or not the transactions contemplated thereby shall
be consummated). Each Borrower shall pay all reasonable out of pocket expenses
incurred by any Credit Party, including the reasonable fees, charges and
disbursements of any counsel for any Credit Party, in connection with the
enforcement or protection of its rights with respect to such Borrower in
connection with the Loan Documents, including its rights under this Section, or
in connection with the Loans made to such Borrower hereunder, including all such
reasonable out of pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) Each Borrower, severally and not jointly, shall indemnify
each Credit Party and each Related Party thereof (each such Person being called
an "Indemnitee") against, and hold each Indemnitee harmless from any and all
losses, claims, damages, liabilities and related expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of any Loan Document by
such Borrower or any agreement or instrument contemplated thereby, the
performance by such Borrower of its obligations under the Loan Documents or the
consummation by such Borrower of the Transactions or any other transactions
contemplated thereby, (ii) any Loan to such Borrower or the use of the proceeds
thereof, or (iii) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto,
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
(a) are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence, bad faith or
willful misconduct of such Indemnitee or (b) are incurred in connection with
disputes arising between or among the Lenders. Notwithstanding anything to the
contrary contained in this Section 10.3(b), no Borrower shall be liable under
such Section for the obligations under such Section of any other Borrower,
PROVIDED that in the event that it is indeterminable as to which Borrower or
Borrowers is or may be obligated under this Section 10.3(b), then all Borrowers
shall share in such obligation Pro Rata.
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(c) To the extent that any Borrower fails to pay any amount
required to be paid by it to the Administrative Agent under paragraph (a) or (b)
of this Section, each Lender severally agrees to pay to the Administrative Agent
such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrowers
shall not assert, and each hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, any Loan Document or any agreement, instrument or other
document contemplated thereby, the Transactions or any Loan or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly but in no event later than 10 days after written demand therefor. Each
Indemnitee agrees to provide reasonable details and supporting information
concerning any costs and expenses required to be paid by a Borrower pursuant to
the terms hereof.
Section 10.4 SUCCESSORS AND ASSIGNS
(a) The provisions of this Credit Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that a Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Credit Party (and any attempted assignment or
transfer by any Borrower without such consent shall be null and void). Nothing
in this Credit Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the
Related Parties of each Credit Party) any legal or equitable right, remedy or
claim under or by reason of any Loan Document.
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(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Credit Agreement (including all
or a portion of its Commitment and the Loans at the time owing to it), provided
that (i) except in the case of an assignment to a Lender or an Affiliate of a
Lender, each of the Borrowers and the Administrative Agent and, in the case of
an assignment of all or any portion of a Commitment or any Lender's obligations
in respect of its Swingline Exposure, the Swingline Lender, must give its prior
written consent to such assignment (which consent shall not be unreasonably
withheld), (ii) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the assigning
Lender's Commitment, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 unless the Borrowers and the
Administrative Agent otherwise consent, (iii) the assignee is an Eligible
Institution, (iv) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire, and provided further, that any consent of a Borrower otherwise
required under this paragraph shall not be required if a Default has occurred
and is continuing with respect to such Borrower. Subject to acceptance and
recording thereof pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under the Loan Documents, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under the Loan Documents (and, in the case of an Assignment
and Acceptance covering all of the assigning Lender's rights and obligations
under the Loan Documents, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 3.5, 3.6, 3.7 and 10.3). Any
assignment or transfer by a Lender of rights or obligations under the Loan
Documents that does not comply with this paragraph shall be treated for purposes
of the Loan Documents as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrowers, shall maintain at one of its offices in New York City a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Revolving Loans owing to, each Lender pursuant to
the terms hereof from time to time (the "REGISTER"). The entries in the Register
shall be conclusive absent manifest error, and the Borrowers and each Credit
Party may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Credit
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers and any Credit Party, at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Credit Agreement
unless it has been recorded in the Register as provided in this paragraph.
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(e) Any Lender may, without the consent of the Borrowers, the
Swingline Lender or the Administrative Agent, sell participations to one or more
banks or other entities (each such bank or other entity being called a
"Participant") in all or a portion of such Lender's rights and obligations under
the Loan Documents (including all or a portion of its Commitment and the Loans
owing to it), provided that (i) such Lender's obligations under the Loan
Documents shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers and the Credit Parties shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce the Loan Documents and to approve any
amendment, modification or waiver of any provision of any Loan Documents,
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 10.2(b) that
affects such Participant. Subject to paragraph (f) of this Section, the
Borrowers agree that each Participant shall be entitled to the benefits of
Sections 3.5 and 3.7 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this Section. To the
extent not prohibited by law, each Participant also shall be entitled to the
benefits of Section 10.8 as though it were a Lender, provided that such
Participant agrees to be subject to Section 2.9(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 3.5 or 3.7 than the Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with each Borrower's prior
written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.7 unless the Borrowers
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers and the Borrowers, to comply with
Section 3.7(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under the Loan Documents to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest, provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations under the Loan Documents or substitute any such pledgee or assignee
for such Lender as a party hereto.
Section 10.5 SURVIVAL
All covenants, agreements, representations and warranties made
by the Borrowers herein and in the certificates or other instruments delivered
in connection with or pursuant to this Credit Agreement shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Credit Agreement and the making of any Loans,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that any Credit Party may have had notice or knowledge of
any Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under the Loan Documents is outstanding and unpaid and so long as the
Commitments have not expired or terminated. The provisions of Sections 3.5, 3.6,
3.7 and 10.4 and Article 9 shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans and the termination of the Commitments or the termination
of this Credit Agreement or any provision hereof.
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Section 10.6 COUNTERPARTS; INTEGRATION; EFFECTIVENESS
This Credit Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute
but one contract. This Credit Agreement and any separate letter agreements with
respect to fees payable to any Credit Party constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 5.1, this Credit Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of this Credit Agreement by fax transmission shall be effective as
delivery of a manually executed counterpart of this Credit Agreement.
Section 10.7 SEVERABILITY
In the event any one or more of the provisions contained in
this Credit Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the legal and economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
Section 10.8 RIGHT OF SETOFF
If an Event of Default with respect to a Borrower shall have
occurred and be continuing, each of the Lenders and their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set-off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other
obligations at any time owing by it to or for the credit or the account of such
Borrower against any of and all the obligations of such Borrower (but not of any
other Borrower) now or hereafter owing under this Credit Agreement held by it,
irrespective of whether or not it shall have made any demand under this Credit
Agreement and although such obligations may be unmatured. The rights of each of
the Lenders under this Section are in addition to other rights and remedies
(including other rights of set-off) that it may have. Each Lender agrees to
promptly notify such Borrower and the Administrative Agent in writing of any
such set-off and application is made by such Lender. Notwithstanding anything to
the contrary in any Loan Document, the Lenders and the Administrative Agent
shall have no right to set-off or counterclaim any such amounts due from or to a
particular Borrower against any such amounts due from or to any other Borrower.
50
Section 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS
(a) This Credit Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally
submits, for each of them and their respective property, to the nonexclusive
jurisdiction of any New York State court or Federal court of the United States
of America sitting in New York County, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to the Loan Documents, or
for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that, to the extent permitted by
applicable law, all claims in respect of any such action or proceeding may be
heard and determined in such New York State court or, to the extent permitted by
applicable law, in such Federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Credit Agreement shall affect any right that
the Administrative Agent or any other Credit Party may otherwise have to bring
any action or proceeding relating to this Agreement or the other Loan Documents
against such Borrower or any of its property, in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it or any of them may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to the Loan
Documents in any court referred to in the first sentence of paragraph (b) of
this Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by applicable law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.
(d) Each party to this Credit Agreement irrevocably consents
to service of process in the manner provided for notices in Section 10.1.
Nothing in this Credit Agreement will affect the right of any party to this
Credit Agreement to serve process in any other manner permitted by law.
Section 10.10 WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS CREDIT AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
51
Section 10.11 HEADINGS
Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Credit
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Credit Agreement.
Section 10.12 INTEREST RATE LIMITATION
Notwithstanding anything herein to the contrary, if at any
time the interest rate applicable to any Loan, together with all fees, charges
and other amounts that are treated as interest on such Loan under applicable law
(collectively the "charges"), shall exceed the maximum lawful rate (the "maximum
rate") that may be contracted for, charged, taken, received or reserved by the
Lender holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all of the charges
payable in respect thereof, shall be limited to the maximum rate and, to the
extent lawful, the interest and the charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this
Section shall be cumulated, and the interest and the charges payable to such
Lender in respect of other Loans or periods shall be increased (but not above
the maximum rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Rate to the date of repayment, shall have been
received by such Lender.
Section 10.13 LENDERS AS INVESTMENT COMPANY ACT BANKS
Notwithstanding anything to the contrary contained herein, no
Person shall become a Lender hereunder (whether by assignment, participation or
otherwise) unless such Person is an Eligible Institution.
Section 10.14 NON-RECOURSE
The Administrative Agent and the Lenders hereby agree for the
benefit of each and every trustee, director, officer and owner of any
outstanding shares of a Borrower and any successor, assignee, heir estate,
executor, administrator or personal representative of any such trustee,
director, officer and record owner of any outstanding shares (a "NON-RECOURSE
PERSON") that (i) no Non-Recourse Person shall have any personal liability for
any obligation of any Borrower under any Loan Document or other instrument or
document delivered pursuant hereto or thereto; (ii) no claim against any
Non-Recourse Person may be made for any obligation of any Borrower under any
Loan Document or other instrument or document delivered pursuant hereto or
thereto, whether for the payment of principal of, or interest on, the Loans or
for any fees, expenses or other amounts payable by any Borrower hereunder or
thereunder; and (iii) the obligations or liabilities of a Borrower under any
Loan Document or other instrument or document delivered pursuant hereto or
thereto, are enforceable solely against that Borrower and its properties and
assets.
52
Section 10.15 ADDITIONAL BORROWERS; WITHDRAWAL OF BORROWERS
(a) Other investment companies registered under the Investment
Company Act for which the Investment Manager acts as investment adviser may,
with the prior written consent of the Administrative Agent and each Lender,
become parties to this Credit Agreement as Borrowers in addition to those
Borrowers listed on Schedule 1.1. Such investment companies shall be deemed
Borrowers for all purposes of this Agreement by executing an amendment of this
Credit Agreement and a Note or Notes in form and substance satisfactory to the
Administrative Agent and the applicable Lenders, which amendment shall be
accompanied by the documents and instruments required to be delivered by such
Borrower pursuant to Section 5.1 and such other documents as the Administrative
Agent may reasonably request. No additional Borrower shall be admitted as a
party to this Credit Agreement unless at the time of such admission and after
giving effect thereto: (i) the representations and warranties set forth in
Article 4 shall be true and correct in all material respects with respect to
such Borrower, (ii) such Borrower shall be in compliance in all material
respects with all of the terms and provisions set forth herein on its part to be
observed or performed at the time of the admission and after giving effect
thereto, and (iii) no Default shall exist or be continuing with respect to such
Borrower at the time of the admission and after giving effect thereto.
(b) In the event that any Borrower desires to terminate its
participation in this Credit Agreement, such Borrower shall give the
Administrative Agent at least three Business Days' advance written notice
thereof. Upon the date specified in such notice and subject to the receipt by
the Administrative Agent of the outstanding principal balance of any Revolving
Loans made to such Borrower together with any accrued and unpaid interest
thereon and such Borrower's Pro Rata Share of any accrued and unpaid Fees and
other amounts due from such Borrower hereunder, such Borrower shall, without any
premium or penalty, cease to be a Borrower hereunder, provided, however, that
any obligations of such Borrower hereunder which would survive the termination
of this Credit Agreement pursuant to the terms hereof shall survive such
Borrower's withdrawal from this Credit Agreement and shall only be obligations
of such Borrower, and no other Borrower shall have any liability therefor.
53
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
COLUMBIA FLOATING RATE LIMITED LIABILITY COMPANY
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
THE BANK OF NOVA SCOTIA, individually and
as Administrative Agent
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
DANSKE BANK A/S
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
54
SWINGLINE NOTE
September 13, 2004
FOR VALUE RECEIVED, each Borrower listed on Schedule I hereto (each, a
"BORROWER" and, collectively, the "BORROWERS"), hereby promises to pay to the
order of The Bank of Nova Scotia (the "SWINGLINE LENDER") the unpaid principal
amount of the Swingline Loans made by the Swingline Lender to such Borrower, in
the amounts and at the times set forth in the Credit Agreement, dated as of
September 13, 2004, among the Borrowers party thereto, the Lenders party
thereto, and The Bank of Nova Scotia, as Administrative Agent (as the same may
be amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), and to pay interest from the date hereof on the principal balance
of such Swingline Loans from time to time outstanding at the rate or rates and
at the times set forth in the Credit Agreement, in each case at the office of
the Administrative Agent located at 0 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as the Administrative Agent may specify from time to
time, in lawful money of the United States in immediately available funds. Terms
not otherwise defined herein but defined in the Credit Agreement are used herein
with the same meanings.
Notwithstanding any other provision of this Note, the Swingline Lender
does not intend to charge and no Borrower shall be required to pay any interest
or other fees or charges in excess of the maximum amount permitted by applicable
law.
This Note evidences borrowings under and has been issued by each of the
Borrowers in accordance with the terms of the Credit Agreement. The Swingline
Lender and any holder hereof is entitled to the benefits of the Credit
Agreement, and may enforce the agreements of each of the Borrowers contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. The obligations of each Borrower hereunder are (i)
several (and not joint and several), independent and separate obligations and
(ii) enforceable solely against the respective Borrower and such Borrower's
properties and assets.
Each Borrower irrevocably authorizes the Swingline Lender to make or
cause to be made, at or about the date of any Swingline Loan to such Borrower or
at the time of receipt of any payment of principal of this Note from such
Borrower, an appropriate notation on the grid attached to this Note, or the
continuation of such grid, or any other similar record, including computer
records, reflecting the making of such Swingline Loan or (as the case may be)
the receipt of such payment. The outstanding amount of the Swingline Loans to
any Borrower set forth on the grid attached to this Note, or the continuation of
such grid, or any other similar record, including computer records, maintained
by the Swingline Lender with respect to any Swingline Loans shall be absent
manifest error prima facie evidence of the principal amount thereof owing and
unpaid to the Swingline Lender, but the failure to record, or any error in so
recording, any such amount on any such grid, continuation or other record shall
not limit or otherwise affect the obligation of such Borrower hereunder or under
the Credit Agreement to make payments of principal of and interest on the
Swingline Loans when due.
Each Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
If any one or more Events of Default shall occur with respect to any
Borrower, the entire unpaid principal amount of this Note outstanding to such
Borrower and all of the unpaid interest accrued thereon may become or be
declared due and payable in the manner and with the effect provided in the
Credit Agreement.
No delay or omission on the part of the Swingline Lender or any holder
hereof in exercising any right hereunder shall operate as a waiver of such right
or of any other rights of the Swingline Lender or such holder, nor shall any
delay, omission or waiver on any one occasion be deemed a bar or waiver of the
same or any other right on any further occasion.
Except as otherwise provided in the Credit Agreement, each Borrower
waives presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note, and assents to any extension or postponement of the time of payment
or any other indulgence, to any substitution, exchange or release of collateral
and to the addition or release of any other party or person primarily or
secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF EACH BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK. EACH BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON SUCH BORROWER BY MAIL AT
THE ADDRESS SPECIFIED IN SECTION 10.1 OF THE CREDIT AGREEMENT. EACH BORROWER
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
IN WITNESS WHEREOF, the undersigned has caused this Note to be signed
by its duly authorized officer on behalf of each Borrower as of the day and year
first above written.
[NAME] on behalf of each
Borrower listed on Schedule
I hereto
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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Amount of Maturity Date
Applicable Amount of Principal Paid of Swingline Notation
Date Borrower Swingline Loan or Prepaid Loan Made By
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SCHEDULE I
Columbia Floating Rate Limited Liability Company
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of September 13,
2004 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT") among the Columbia Funds a party thereto, (ii) the several
lenders from time to time party thereto and (iii) The Bank of Nova Scotia, as
Administrative Agent. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
__________________ (the "ASSIGNEE") and ______________ (the "ASSIGNOR")
agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below) the interest described in SCHEDULE 1 hereto
(the "ASSIGNED INTEREST") in and to the Assignor's rights and obligations under
the Credit Agreement.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the Assigned Interest and that the Assigned
Interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower, or any other obligor or the performance or
observance by any Borrower, or any other obligor, of any of their respective
obligations under the Credit Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto; and (c) attaches
any Notes held by it evidencing the Assigned Interest and requests that the
Administrative Agent exchange the attached Notes for (i) a new Note or Notes
evidencing the Assigned Interest payable to the Assignee, and (ii) if the
Assignor has retained any interest under the Loan Documents, a new Note or Notes
payable to the Assignor, evidencing such retained interest (and after giving
effect to any other assignments which have become effective on the Effective
Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of 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; (c) agrees
that it will, independently and without reliance on the Assignor, the
Administrative Agent or any other Lender 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, the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Administrative Agent to take
such action as on its behalf and to exercise such powers and discretion under
the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will perform all the obligations
which by the terms of the Credit Agreement are required to be performed by it as
a Lender, including, if it is organized under the laws of a jurisdiction outside
the United States, its obligation pursuant to subsection 3.7(e) of the Credit
Agreement.
4. The effective date of this Assignment and Acceptance shall be (the
"EFFECTIVE DATE"). Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent (together with the processing and
recording fees required under the Credit Agreement) for acceptance by it and
recording by the Administrative Agent pursuant to the Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Administrative Agent, be earlier than five Business Days after the date
of such acceptance by the Administrative Agent).
5. Assuming such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
6. Assuming such acceptance and recording, from and after the Effective
Date, (a) 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 Lender thereunder and under the other Loan Documents and shall
be bound by the provisions thereof and (b) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed on SCHEDULE I hereto as of the date first above
written by their respective duly authorized officers.
2
SCHEDULE I TO ASSIGNMENT AND ACCEPTANCE RELATING TO THE
CREDIT AGREEMENT DATED AS OF SEPTEMBER 13, 2004
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Principal Amount Assigned Commitment Amount Assigned
$
--------------- -----------------------
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
-------------------------- --------------------------
Name: Name:
Title: Title:
Accepted and Consented To: Consented To:
THE BANK OF NOVA SCOTIA [SIGNATURE BLOCK FOR EACH
BORROWER]
By: By:
-------------------------- --------------------------
Name: Name:
Title: Title:
3
EXHIBIT C-1
FORM OF NOTE
September 13, 2004
FOR VALUE RECEIVED, each Borrower listed on Schedule I hereto (each, a
"BORROWER" and, collectively, the "BORROWERS"), hereby promises to pay to the
order of ____________ (the "LENDER") the unpaid principal amount of the
Revolving Loans made by the Lender to such Borrower, in the amounts and at the
times set forth in the Credit Agreement, dated as of September 13, 2004, among
the Borrowers party thereto, the Lenders party thereto, and The Bank of Nova
Scotia, as Administrative Agent (as the same may be amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), and to pay
interest from the date hereof on the principal balance of such Revolving Loans
from time to time outstanding at the rate or rates and at the times set forth in
the Credit Agreement, in each case at the office of the Administrative Agent
located at 0 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
the Administrative Agent may specify from time to time, in lawful money of the
United States in immediately available funds. Terms not otherwise defined herein
but defined in the Credit Agreement are used herein with the same meanings.
Notwithstanding any other provision of this Note, the Lender does not
intend to charge and no Borrower shall be required to pay any interest or other
fees or charges in excess of the maximum amount permitted by applicable law.
This Note evidences borrowings under and has been issued by each of the
Borrowers in accordance with the terms of the Credit Agreement. The Lender and
any holder hereof is entitled to the benefits of the Credit Agreement, and may
enforce the agreements of each of the Borrowers contained therein, and any
holder hereof may exercise the respective remedies provided for thereby or
otherwise available in respect thereof, all in accordance with the respective
terms thereof. The obligations of each Borrower hereunder are (i) several (and
not joint and several), independent and separate obligations and (ii)
enforceable solely against the respective Borrower and such Borrower's
properties and assets.
Each Borrower irrevocably authorizes the Lender to make or cause to be
made, at or about the date of any Revolving Loan to such Borrower or at the time
of receipt of any payment of principal of this Note from such Borrower, an
appropriate notation on the grid attached to this Note, or the continuation of
such grid, or any other similar record, including computer records, reflecting
the making of such Revolving Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Revolving Loans to any Borrower set forth
on the grid attached to this Note, or the continuation of such grid, or any
other similar record, including computer records, maintained by the Lender with
respect to any Revolving Loans shall be absent manifest error prima facie
evidence of the principal amount thereof owing and unpaid to the Lender, but the
failure to record, or any error in so recording, any such amount on any such
grid, continuation or other record shall not limit or otherwise affect the
obligation of such Borrower hereunder or under the Credit Agreement to make
payments of principal of and interest on the Revolving Loans when due.
Each Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
If any one or more Events of Default shall occur with respect to any
Borrower, the entire unpaid principal amount of this Note outstanding to such
Borrower and all of the unpaid interest accrued thereon may become or be
declared due and payable in the manner and with the effect provided in the
Credit Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
Except as otherwise provided in the Credit Agreement, each Borrower
waives presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note, and assents to any extension or postponement of the time of payment
or any other indulgence, to any substitution, exchange or release of collateral
and to the addition or release of any other party or person primarily or
secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF EACH BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK. EACH BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON SUCH BORROWER BY MAIL AT
THE ADDRESS SPECIFIED IN SECTION 10.1 OF THE CREDIT AGREEMENT. EACH BORROWER
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
IN WITNESS WHEREOF, the undersigned has caused this Note to be signed
by its duly authorized officer on behalf of each Borrower as of the day and year
first above written.
[NAME] on behalf of each
Borrower listed on Schedule I hereto
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
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Interest Rate Interest Period Balance of
Applicable Amount of on Eurodollar on Eurodollar Principal Notation
Date Borrower Loan Loan Loan Unpaid Made By
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SCHEDULE I
[NAME]
EXHIBIT C-2
FORM OF SWINGLINE NOTE
September 13, 2004
FOR VALUE RECEIVED, each Borrower listed on Schedule I hereto (each, a
"BORROWER" and, collectively, the "BORROWERS"), hereby promises to pay to the
order of The Bank of Nova Scotia (the "SWINGLINE LENDER") the unpaid principal
amount of the Swingline Loans made by the Swingline Lender to such Borrower, in
the amounts and at the times set forth in the Credit Agreement, dated as of
September 13, 2004, among the Borrowers party thereto, the Lenders party
thereto, and The Bank of Nova Scotia, as Administrative Agent (as the same may
be amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), and to pay interest from the date hereof on the principal balance
of such Swingline Loans from time to time outstanding at the rate or rates and
at the times set forth in the Credit Agreement, in each case at the office of
the Administrative Agent located at 0 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as the Administrative Agent may specify from time to
time, in lawful money of the United States in immediately available funds. Terms
not otherwise defined herein but defined in the Credit Agreement are used herein
with the same meanings.
Notwithstanding any other provision of this Note, the Swingline Lender
does not intend to charge and no Borrower shall be required to pay any interest
or other fees or charges in excess of the maximum amount permitted by applicable
law.
This Note evidences borrowings under and has been issued by each of the
Borrowers in accordance with the terms of the Credit Agreement. The Swingline
Lender and any holder hereof is entitled to the benefits of the Credit
Agreement, and may enforce the agreements of each of the Borrowers contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. The obligations of each Borrower hereunder are (i)
several (and not joint and several), independent and separate obligations and
(ii) enforceable solely against the respective Borrower and such Borrower's
properties and assets.
Each Borrower irrevocably authorizes the Swingline Lender to make or
cause to be made, at or about the date of any Swingline Loan to such Borrower or
at the time of receipt of any payment of principal of this Note from such
Borrower, an appropriate notation on the grid attached to this Note, or the
continuation of such grid, or any other similar record, including computer
records, reflecting the making of such Swingline Loan or (as the case may be)
the receipt of such payment. The outstanding amount of the Swingline Loans to
any Borrower set forth on the grid attached to this Note, or the continuation of
such grid, or any other similar record, including computer records, maintained
by the Swingline Lender with respect to any Swingline Loans shall be absent
manifest error prima facie evidence of the principal amount thereof owing and
unpaid to the Swingline Lender, but the failure to record, or any error in so
recording, any such amount on any such grid, continuation or other record shall
not limit or otherwise affect the obligation of such Borrower hereunder or under
the Credit Agreement to make payments of principal of and interest on the
Swingline Loans when due.
Each Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
If any one or more Events of Default shall occur with respect to any
Borrower, the entire unpaid principal amount of this Note outstanding to such
Borrower and all of the unpaid interest accrued thereon may become or be
declared due and payable in the manner and with the effect provided in the
Credit Agreement.
No delay or omission on the part of the Swingline Lender or any holder
hereof in exercising any right hereunder shall operate as a waiver of such right
or of any other rights of the Swingline Lender or such holder, nor shall any
delay, omission or waiver on any one occasion be deemed a bar or waiver of the
same or any other right on any further occasion.
Except as otherwise provided in the Credit Agreement, each Borrower
waives presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note, and assents to any extension or postponement of the time of payment
or any other indulgence, to any substitution, exchange or release of collateral
and to the addition or release of any other party or person primarily or
secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF EACH BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK. EACH BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON SUCH BORROWER BY MAIL AT
THE ADDRESS SPECIFIED IN SECTION 10.1 OF THE CREDIT AGREEMENT. EACH BORROWER
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
IN WITNESS WHEREOF, the undersigned has caused this Note to be signed
by its duly authorized officer on behalf of each Borrower as of the day and year
first above written.
[NAME] on behalf of each
Borrower listed on Schedule I hereto
By:
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Name:
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Title:
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Amount of Maturity Date
Applicable Amount of Principal Paid of Swingline Notation
Date Borrower Swingline Loan or Prepaid Loan Made By
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SCHEDULE I
[NAME]
EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
I, ______________, do hereby certify that I am duly authorized to
execute and deliver this Compliance Certificate on behalf of each Borrower
listed on Schedule A attached hereto (the "BORROWERS") pursuant to Section
6.1(c) of the Credit Agreement, dated as of September 13, 2004, by and among the
Borrowers, the Lenders party thereto, and The Bank of Nova Scotia, as
Administrative Agent (as the same may be amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"). Capitalized terms used
herein which are not defined herein shall have the meanings assigned to such
terms in the Credit Agreement.
I hereby certify that:
1. To the best of my knowledge, all financial statements delivered
herewith have been prepared in accordance with GAAP. There have been no changes
in GAAP or in the application thereof since the date of the audited financial
statements referred to in Section 4.15 of the Credit Agreement[, EXCEPT AS
FOLLOWS:]1
2. There exists no violation of any covenant or agreement contained in
any Loan Document, and no condition or event has occurred which would constitute
a Default [, EXCEPT AS FOLLOWS2]
3. Attached are true and correct calculations demonstrating compliance
with Section 7.11 of the Credit Agreement.
4. There has been no change to the jurisdiction of organization or
legal name of any Borrower since the date of the last Compliance Certificate
delivered pursuant to the Credit Agreement.
IN WITNESS WHEREOF, I have executed this Compliance Certificate on this
___ day of ________, 200_.
-------------------------------
Name:
Title:
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1 Specify each such change and the effect thereof on the financial statements
accompanying this Compliance Certificate.
2 Specify all such violations, conditions and events, the nature and status
thereof and any action taken or proposed to be taken with respect thereto.
SCHEDULE 2.1
TO THE CREDIT AGREEMENT
LIST OF COMMITMENTS
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LENDER COMMITMENT AMOUNT
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The Bank of Nova Scotia $75,000,000
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Danske Bank $75,000,000
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TOTAL $150,000,000
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