CREDIT AGREEMENT
Dated as of April 29, 1996
among
THE INVESTMENT COMPANIES PARTY HERETO,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent,
and
THE OTHER BANKS PARTY HERETO
Amendment and Restatement as of May 17, 1999
NATIONSBANC XXXXXXXXXX SECURITIES LLC,
AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION 1
1.1. Defined Terms 1
1.2. Interpretation 1
1.3. Accounting Terms 2
1.4. Assumptions Regarding Structure 2
1.5. Authority of Adviser; Adviser Disclaimer 3
ARTICLE II THE CREDITS 3
2.1. Amounts and Terms of Commitments 3
2.2. Notes 4
2.3. Procedure for Borrowing 4
2.4. Conversion and Continuation Elections 5
2.5. Voluntary Termination or Reduction of Commitments 6
2.6. Prepayments 6
2.7. Repayment 6
2.8. Interest 6
2.9. Fees 7
2.10. Computation of Fees and Interest 7
2.11. Payments 8
2.12. Payments by the Banks to the Agent 8
2.13. Sharing of Payments, etc. 9
2.14. Source of Repayment 9
2.15. Swing Loans 10
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 11
3.1. Taxes 11
3.2. Illegality 12
3.3. Increased Costs and Reduction of Return 13
3.4. Funding Losses 13
3.5. Inability to Determine Rates 14
3.6. Certificates of Banks 14
3.7. Substitution of Banks 14
3.8. Survival 15
ARTICLE IV CONDITIONS TO BORROWING 15
4.1. Conditions Precedent to and Consequences
of Effectiveness of Amendments 15
4.2. All Borrowings 16
4.3. Consequences of Effectiveness 17
ARTICLE V REPRESENTATIONS AND WARRANTIES 18
5.1. Existence 18
5.2. Authorization 18
5.3. No Conflicts 18
5.4. Validity and Binding Effect 18
5.5. No Default 18
5.6. Financial Statements 19
5.7. Litigation 19
5.8. Liens 19
5.9. Partnerships 19
5.10. Purpose 19
5.11. Compliance and Government Approvals 20
5.12. Pension and Welfare Plans 20
5.13. Taxes 20
5.14. Subsidiaries; Investments 20
5.15. Full Disclosure 20
5.16. Investment Policies 20
5.17. Tax Status 20
5.18. Regulations T, U and X 20
5.19. Status of Loans 21
5.20. Computer Systems 21
ARTICLE VI COVENANTS 21
6.1. Financial Statements and Other Reports 21
6.2. Notices 22
6.3. Existence 23
6.4. Nature of Business 23
6.5. Books, Records and Access 23
6.6. Insurance 24
6.7. Investment Policies and Restrictions 24
6.8. Taxes 24
6.9. Compliance 24
6.10. Pension Plans 24
6.11. Merger, Purchase and Sale 24
6.12. Asset Coverage Ratio 25
6.13. Liens 25
6.14. Guaranties 26
6.15. Other Agreements 26
6.16. Transactions with Related Parties 26
6.17. Other Indebtedness 26
6.18. Changes to Organization Documents, etc. 27
6.19. Violation of Investment Restrictions, etc. 27
6.20. Proceeds of Loans 27
6.21. Adviser 27
6.22. Service Providers to Trust 27
ARTICLE VII EVENTS OF DEFAULT 27
7.1. Events of Default 27
7.2. Remedies 29
ARTICLE VIII THE AGENT 30
8.1. Appointment and Authorization 30
8.2. Delegation of Duties 30
8.3. Liability of Agent 30
8.4. Reliance by Agent 31
8.5. Notice of Default 31
8.6. Credit Decision 31
8.7. Indemnification of Agent 32
8.8. Agent in Individual Capacity 32
8.9. Successor Agent 32
8.10. Withholding Tax 33
ARTICLE IX MISCELLANEOUS PROVISIONS 34
9.1. Amendments and Waivers 34
9.2. Notices 35
9.3. No Waiver; Cumulative Remedies 36
9.4. Costs and Expenses 36
9.5. Funds Indemnification 36
9.6. Payments Set Aside 37
9.7. Successors and Assigns 37
9.8. Confidentiality 38
9.9. Set-off 39
9.10. Notification of Addresses, Lending Offices, etc. 39
9.11. Counterparts 39
9.12. Survival 39
9.13. Disclaimer 39
9.14. Severability 40
9.15. No Third Parties Benefited 40
9.16. Governing Law and Jurisdiction 40
9.17. Waiver of Jury Trial 40
9.18. Acknowledgments 41
9.19. Entire Agreement 41
SCHEDULE I Definitions
SCHEDULE II Commitments and Pro Rata Shares
SCHEDULE III Offshore and Domestic Lending Offices, Addresses for Notices
EXHIBIT 2.2 Form of Promissory Note
EXHIBIT 2.3 Form of Loan Request
EXHIBIT 2.4 Form of Continuation/Conversion Notice
EXHIBIT 2.14 Form of Allocation Notice
EXHIBIT 4.1(c) Form of Opinion of Counsel to the Funds
EXHIBIT 5.7-1 Schedule of Litigation
EXHIBIT 5.7-2 Schedule of Contingent Liabilities
EXHIBIT 6.1 Form of Borrowing Base Certificate
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CREDIT AGREEMENT
This document, dated as of May 17, 1999, amends and restates that
certain CREDIT AGREEMENT, dated as of April 29, 1996 and amended from time to
time thereafter and prior to the date hereof (the "Existing Agreement"), is made
by and among each of the investment companies (each, a "Trust") a party hereto
on behalf of the Funds listed on the signature pages hereto or hereafter added
hereto, the various banks (as defined in Section 2(a)(5) of the Act) as are or
may become party hereto (collectively, the "Banks") (none of which is affiliated
(as defined in the Act) with any of the Trusts or Colonial Management
Associates, Inc.), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
("BofA"), as agent (in such capacity, the "Agent") for the Banks.
W I T N E S S E T H:
WHEREAS, the Trusts (either on their own behalf or on behalf of certain
specified Funds) identified on Annex I hereto listed under the heading Original
Borrower Parties (the "Original Borrower Parties") are parties to the Credit
Agreement;
WHEREAS, the Original Borrower Parties, the Banks presently party to
the Credit Agreement and the Agent desire to amend the Existing Agreement to add
as parties thereto the Trusts (either on their own behalf or on behalf of
certain specified Funds) identified on Annex I hereto listed under the heading
New Borrower Parties (the "New Borrower Parties"), to extend the Scheduled
Termination Date and to effect other changes to the Credit Agreement as
hereinafter provided;
WHEREAS, in order to facilitate the aforesaid amendments, it is
desirable to amend and restate the Existing Agreement on the terms and
conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1. Defined Terms. Unless a clear contrary intention appears, terms defined in
Schedule I have the same respective meanings when used in this Agreement.
1.2. Interpretation. In this Agreement, unless a clear contrary intention
appears:
a) the singular number includes the plural number and vice versa;
b) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement, and reference to a Person in a particular
capacity excludes such Person in any other capacity or individually;
c) reference to any gender includes each other gender;
d) reference to any agreement (including this Agreement), document or
instrument means such agreement, document or instrument as amended or
modified and in effect from time to time in accordance with the terms
thereof and, if applicable, the terms hereof and the other Credit Documents
and reference to any promissory note includes any promissory note which is
an extension or renewal thereof or a substitute or replacement therefor;
e) reference to any applicable law means such applicable law as
amended, modified, codified, replaced or reenacted, in whole or in part,
and in effect from time to time, including rules and regulations
promulgated thereunder, and reference to any section or other provision of
any applicable law means that provision of such applicable law from time to
time in effect and constituting the substantive amendment, modification,
codification, replacement or reenactment of such section or other
provision;
f) reference to any Article, Section, Annex, Schedule or Exhibit means
such Article or Section hereof or Annex, Schedule or Exhibit hereto;
g) "hereunder", "hereof", "hereto" and words of similar import shall
be deemed references to this Agreement as a whole and not to any particular
Article, Section or other provision hereof;
h) "including" (and with the correlative meaning "include") means
including without limiting the generality of any description preceding such
term;
i) "or" is not exclusive; and
j) relative to the determination of any period of time, "from" means
from and including" and "to" and "through" mean "to but excluding".
1.3. Accounting Terms. In this Agreement, unless expressly otherwise provided,
accounting terms shall be construed and interpreted, and accounting
determinations and computations shall be made, in accordance with GAAP.
1.4. Assumptions Regarding Structure. The parties acknowledge and agree that the
Trusts are comprised of one or more separate Funds and that such Funds are not
separately existing legal entities entitled to enter into contractual agreements
or to execute instruments, and for these reasons, the relevant Trusts are
executing this Agreement and the relevant Notes on behalf of their specified
respective Funds.
1.5. Authority of Adviser; Adviser Disclaimer. Each of the Funds hereby confirms
that the Adviser has been duly authorized to act on behalf of such Fund for
purposes of this Agreement and the relevant Notes and to take all actions which
such Fund is entitled or required to take hereunder or thereunder, including,
without limitation, requesting the making, continuation or conversion of Loans
on behalf of a Fund pursuant to Article II, reducing or terminating the
Commitments as to one or more Funds, and executing and delivering Loan Requests,
Borrowing Base Certificates and any and all other certificates, reports,
financial information and notices required to be delivered to the Agent
hereunder. Notwithstanding the foregoing or anything to the contrary contained
in this Agreement, the parties hereto acknowledge and agree that (a) in taking
any such action hereunder or under a Note, the Adviser is acting solely in its
capacity as investment adviser for the Funds and not in its individual capacity,
(b) neither the Adviser nor any of its officers, employees or agents (with the
Adviser, collectively, "Adviser Persons") shall have any liability whatsoever
for any action taken or omitted to be taken by any of them in connection with
this Agreement or any Note nor shall any of them be bound by or liable for any
indebtedness, liability or obligation hereunder or under any Note and (c) no
Adviser Person shall be responsible in any manner to the Banks for the truth,
completeness or accuracy of any statement, representation, warranty or
certification contained in this Agreement or in any information, report,
certificate or other document furnished by the Adviser on behalf of any Trust or
Fund in connection with this Agreement, including, without limitation, any Loan
Request, any Borrowing Base Certificate, and any certificate or notice furnished
pursuant to Section 6.1 or 6.2 hereof; provided that, in the case of clauses (b)
and (c) above, the conduct of the Adviser Persons or any of them did not
constitute gross negligence or willful misconduct.
ARTICLE II
THE CREDITS
2.1. Amounts and Terms of Commitments. Each Bank severally agrees, on the terms
and conditions set forth herein, to make Loans to the Funds from time to time on
any Business Day during the period from the Closing Date to the Commitment
Termination Date equal to its Pro Rata Share of the aggregate amount of the
Borrowing requested by any Fund to be made on such day. The Commitment of each
Bank and the outstanding principal amount of Loans (including Swing Loans) made
by each Bank hereunder shall not exceed at any time the aggregate amount set
forth on Schedule II (such amount as the same may be reduced under Section 2.5
or as a result of one or more assignments as permitted herein, the Bank's
"Commitment"); provided, however, that, after giving effect to any Borrowing,
the aggregate principal amount of all outstanding Loans shall not at any time
exceed the Commitment Amount, and provided that the aggregate principal amount
of all Loans outstanding from time to time to any Fund shall not exceed the
Borrowing Base for such Fund. Within the limits of each Bank's Commitment, and
subject to the other terms and conditions hereof, a Fund may borrow under this
Section 2.1, repay under the terms hereof and reborrow under this Section 2.1.
Subject to the terms of Section 2.15, a Fund may request and BofA may make a
Swing Loan to a Fund.
2.2. Notes. The Loans made by each Bank under its Commitment to each Fund shall
be evidenced by a Note in the form of Exhibit 2.2. Each such Bank shall endorse
on the schedules annexed to its Note the date, amount and maturity of each Loan
made by it and the amount of each payment of principal made by the Fund with
respect thereto. Each such Bank is irrevocably authorized by each Fund to
endorse its Note, and each Bank's record shall be conclusive absent manifest
error; provided, however, that the failure of a Bank to make, or an error in
making, a notation thereon with respect to any Loan shall not limit or otherwise
affect the obligations of the Fund hereunder or under any such Note to such
Bank.
2.3. Procedure for Borrowing. Each Borrowing shall be made upon the borrowing
Fund's irrevocable written notice delivered to the Agent in the form of a loan
request ("Loan Request") substantially in the form of Exhibit 2.3 hereto (which
notice must be received on a Business Day by the Agent prior to 9:00 a.m. (San
Francisco time) (i) two (2) Business Day prior to the requested Borrowing Date,
in the case of Offshore Rate Loans, and (ii) on the Borrowing Date for which a
Loan is requested, in the case of Base Rate Loans or Federal Funds Rate Loans,
specifying:
(A) the amount of the Borrowing, which shall be in an aggregate minimum
amount of $1,000,000 or any multiple of $1,000,000 in excess thereof;
(B) the requested Borrowing Date, which shall be a Business Day;
(C) the Type of Loans comprising the Borrowing; and
(D) the duration of the Interest Period applicable to such
Loans included in such notice. If the Loan Request fails to specify the
duration of the Interest Period for any Borrowing comprised of Offshore
Rate Loans, such Interest Period shall be two weeks.
In the event that more than one Loan Request is delivered on any
Business Day, the Agent shall, for purposes of ensuring that the aggregate of
the then-outstanding Loans and the Loans which are the subject of the Loan
Requests will not exceed the Commitment Amount, process the Loan Requests in the
order of receipt.
b) The Agent will promptly notify each Bank of its receipt of any Loan
Request and of the amount of such Bank's Pro Rata Share of that
Borrowing.
c) Each Bank will make the amount of its Pro Rata Share of each Borrowing
available to the Agent for the account of the borrowing Fund at the
Agent's Payment Office by 11:00 a.m. (San Francisco time) on the
Borrowing Date requested by the borrowing Fund in funds immediately
available to the Agent for deposit to the account which the Agent
shall from time to time specify by notice to the Banks. The proceeds
of all such Loans will then be made available to the Fund by the Agent
in accordance with written instructions provided to the Agent by the
Fund in like funds as received by the Agent. No Bank's obligation to
make any Loan shall be affected by any other Bank's failure to make
any Loan.
d) After giving effect to any Borrowing, there may not be more than 10
different Interest Periods in effect as to all the Funds.
2.4. Conversion and Continuation Elections.(a) A Fund may, upon irrevocable
written notice to the Agent in accordance with Section 2.4(b):
(i) elect, as of any Business Day, in the case of Base Rate
Loans or Federal Funds Rate Loans, or as of the last day of
the applicable Interest Period, in the case of any other
Type of Loans, to convert any such Loans (or any part
thereof in an amount not less than $1,000,000 or that is in
an integral multiple of $1,000,000 in excess thereof) into
Loans of any other Type; or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Loans having Interest Periods
expiring on such day (or any part thereof in an amount not
less than $1,000,000 or that is in an integral multiple of
$1,000,000 in excess thereof);
provided that, if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced by payment, prepayment or conversion of part
thereof to be less than $1,000,000, such Offshore Rate Loans shall automatically
convert into Base Rate Loans, and on and after such date, the right of the Fund
to continue such Loans as, and convert such Loans into, Offshore Rate Loans
shall terminate.
Notwithstanding anything to the contrary, no Loan shall be outstanding
for a period of more than two weeks, and there shall be no more than two
Interest Periods in respect of an Offshore Rate Loan.
b) A Fund shall deliver a Conversion/Continuation Notice to be received by the
Agent not later than 9:00 a.m. (San Francisco time) at least (i) one Business
Day in advance of the Conversion/Continuation Date, if the Loans are to be
converted into or continued as Offshore Rate Loans, and (ii) on the
Conversion/Continuation Date, if the Loans are to be continued or converted into
Base Rate Loans or Federal Funds Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Loans to be converted or
continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
(D)other than in the case of conversions into Base Rate
Loans or Federal Funds Rate Loans, the duration of the
requested Interest Period.
c) The Agent will promptly
notify each Bank of its receipt of a
Conversion/Continuation Notice. All conversions and
continuations shall be made ratably according to the
respective outstanding principal amounts of the Loans
with respect to which the notice was given held by each
Bank.
d) Unless the Majority Banks otherwise agree, during the existence of a
Default,a Fund may not elect to have a Loan converted into or continued as
an Offshore Rate Loan.
2.5. Voluntary Termination or Reduction of Commitments. The Funds may, upon not
less than five (5) Business Days' prior notice to the Agent, terminate the
Commitments, or permanently reduce the Commitments by an aggregate minimum
amount of $3,000,000 or any multiple of $1,000,000 in excess thereof; unless,
after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the then-outstanding principal amount of the Loans would
exceed the amount of the Commitment Amount then in effect. Once reduced in
accordance with this Section, the Commitment Amount may not be increased. Any
reduction of the Commitment Amount shall be applied to each Bank according to
its Pro Rata Share. All accrued commitment fees to but not including the
effective date of any termination of Commitments shall be paid on the effective
date of such termination. All accrued commitment fees to but not including the
effective date of any reduction of Commitments shall be paid on the last
Business Day of the then-current calendar quarter.
2.6. Prepayments. If at any time the outstanding balance of a Fund's
Indebtedness shall exceed the then-current Borrowing Base of such Fund and at
such time there are Loans outstanding to such Fund, such Fund shall immediately
prepay the outstanding principal amount of such Loans in an amount equal to such
excess, together with interest accrued thereon and amounts required under
Section 3.4.
2.7. Repayment. Each Fund shall repay to the Agent for the benefit of the Banks
on the Commitment Termination Date the aggregate principal amount of its Loans
outstanding on such date without liability for any Loan(s) made to any other
Fund.
2.8. Interest.(a) Each Loan shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per annum equal to
the Federal Funds Rate, the Offshore Rate or the Base Rate, as the case may be,
(and subject to a Fund's right to convert to other Type(s) of Loans under
Section 2.4), plus the Applicable Margin.
b) Interest on each Loan shall be paid in arrears on each Interest Payment Date.
Interest shall also be paid on the date of any prepayment of Offshore Rate Loans
under Section 2.6 for the portion of the Loans so prepaid and upon payment
(including prepayment) in full thereof, and during the existence of any Event of
Default, interest shall be paid on demand of the Agent at the request or with
the consent of the Majority Banks.
Notwithstanding subsection (a) of this Section, if any amount of
principal of or interest on any Loan, or any other amount payable hereunder or
under any other Credit Document, is not paid in full when due (whether at stated
maturity or by acceleration, demand or otherwise), the Fund agrees to pay
interest on such unpaid principal or other amount from the date such amount
becomes due until the date such amount is paid in full, and after as well as
before any entry of judgment thereon to the extent permitted by law, payable on
demand at a fluctuating rate per annum equal to the Base Rate plus two percent
(2%).
c) Anything herein to the contrary notwithstanding, the obligations of any Fund
to any Bank hereunder shall be subject to the limitation that payments of
interest shall not be required for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by such Bank would be contrary to the provisions of any
law applicable to such Bank limiting the highest rate of interest that may be
lawfully contracted for, charged or received by such Bank, and in such event the
Fund shall pay such Bank interest at the highest rate permitted by applicable
law.
2.9. Fees.(a) Arrangement, Agency Fees. Subject to the Allocation Notice
requirements of Section 2.14(a), each Fund shall pay an agency fee to the Agent
for the Agent's own account, as required by the letter agreement ("Fee Letter")
among the Adviser, the Arranger and the Agent dated March 29, 1999 .
b) Commitment Fees. Subject to the Allocation Notice requirements of Section
2.14(a), each Fund shall pay to the Agent for the account of each Bank a
commitment fee on the average daily unused portion of such Bank's Commitments,
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter based upon the daily utilization for that quarter as calculated
by the Agent, equal to eight one-hundredths of one percent (0.08%) per annum.
For purposes of calculation of the commitment fee under this Section 2.9(b),
outstanding Swing Loans shall not be deemed as Loan usage under the Banks'
Commitments. Such commitment fee shall accrue from the Refinancing Date to the
Commitment Termination Date and shall be due and payable quarterly in arrears on
the last Business Day of each March, June, September and December, with the
final payment to be made on the Commitment Termination Date. All accrued
commitment fees to but not including the effective date of any termination of
Commitments shall be paid on the effective date of such termination. All accrued
commitment fees to but not including the effective date of any reduction of
Commitments shall be paid on the last Business Day of the then-current calendar
quarter, with such quarterly payment being calculated on the basis of the period
from such reduction date to such quarterly payment date. The commitment fees
provided in this subsection shall accrue at all times after the above-mentioned
commencement date, including at any time during which one or more conditions in
Article IV are not met.
2.10.Computation of Fees and Interest.(a) All computations of interest for Base
Rate Loans when the Base Rate is determined by BofA's "reference rate" shall be
made on the basis of a year of 365 or 366 days, as the case may be, and actual
days elapsed. All other computations of fees and interest shall be made on the
basis of a 360-day year and actual days elapsed (which results in more interest
being paid than if computed on the basis of a 365- or 366-day year). Interest
and fees shall accrue during each period during which interest or such fees are
computed from the first day thereof to the last day thereof.
b) Each determination of an interest rate by the Agent shall be conclusive and
binding on the relevant Fund and the Banks in the absence of manifest error. The
Agent will, at the request of a relevant Fund or any Bank, deliver to such Fund
or Bank, as the case may be, a statement showing the quotations used by the
Agent in determining any interest rate and the resulting interest rate.
a) Payments. All payments to be made by a Fund shall be made without set-off,
recoupment or counterclaim. Except as otherwise expressly provided herein, all
such payments shall be made to the Agent for the account of the Banks at the
Agent's Payment Office and shall be made in Dollars and in immediately available
funds no later than 11:00 a.m. (San Francisco time) on the date specified
herein. The Agent will promptly distribute to each Bank its Pro Rata Share (or
other applicable share as expressly provided herein) of such payment in like
funds as received. Any payment received by the Agent later than 11:00 a.m. (San
Francisco time) shall be deemed to have been received on the following Business
Day, and any applicable interest or fee shall continue to accrue.
b) Subject to the provisions set forth in the definition of "Interest Period"
herein, whenever any payment is due on a day other than a Business Day, such
payment shall be made on the following Business Day, and such extension of time
shall in such case be included in the computation of interest or fees, as the
case may be.
c) Unless the Agent receives notice from a Fund prior to the date on which any
payment is due to the Banks that such Fund will not make such payment in full as
and when required, the Agent may assume that the Fund has made such payment in
full to the Agent on such date in immediately available funds, and the Agent may
(but shall not be so required), in reliance upon such assumption, distribute to
each Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent the Fund has not made such payment in full to the Agent, each
Bank shall repay to the Agent on demand such amount distributed to such Bank,
together with interest thereon at the Federal Funds Rate for each day from the
date such amount is distributed to such Bank until the date repaid.
2.12.Payments by the Banks to the Agent. Unless the Agent receives notice from a
Bank on or prior to the Closing Date or, with respect to any Borrowing after the
Closing Date, at least one (1) Business Day prior to the date of such Borrowing,
that such Bank will not make available as and when required hereunder to the
Agent for the account of the relevant Fund the amount of that Bank's Pro Rata
Share of the Borrowing, the Agent may assume that each Bank has made such amount
available to the Agent in immediately available funds on the Borrowing Date and
the Agent may (but shall not be so required), in reliance upon such assumption,
make available to the Fund on such date a corresponding amount. If and to the
extent any Bank shall not have made its full amount available to the Agent in
immediately available funds and the Agent in such circumstances has made
available to the relevant Fund such amount, that Bank shall on the Business Day
following such Borrowing Date make such amount available to the Agent, together
with interest at the Federal Funds Rate for each day during such period. A
notice of the Agent submitted to any Bank with respect to amounts owing under
this subsection (a) shall be conclusive, absent manifest error. If such amount
is so made available, such payment to the Agent shall constitute such Bank's
Loan on the date of Borrowing for all purposes of this Agreement. If such amount
is not made available to the Agent on the Business Day following the Borrowing
Date, the Agent will notify the Fund of such failure to fund, and upon demand by
the Agent, the relevant Fund shall pay such amount to the Agent for the Agent's
account, together with interest thereon for each day elapsed since the date of
such Borrowing, at a rate per annum equal to the interest rate applicable at the
time to the Loans comprising such Borrowing.
b) The failure of any Bank to make any Loan on any Borrowing Date shall not
relieve any other Bank of any obligation hereunder to make a Loan on such
Borrowing Date, but no Bank shall be responsible for the failure of any other
Bank to make the Loan to be made by such other Bank on any Borrowing Date.
2.13.Sharing of Payments, etc. If, other than as expressly provided elsewhere
herein, any Bank shall obtain on account of the Loans made by it any payment
(whether voluntary, involuntary, through the exercise of any right of set-off or
otherwise) in excess of its Pro Rata Share, such Bank shall immediately (a)
notify the Agent of such fact and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to cause such
purchasing Bank to share the excess payment pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to the purchasing Bank to (ii) the total amount
so recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered. Each
Fund agrees that any Bank so purchasing a participation from another Bank may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off with respect to such participation) as fully as
if such Bank were the direct creditor of the relevant Fund in the amount of such
participation. The Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Banks following any such purchases or
repayments.
2.14.Source of Repayment. (a) Notwithstanding any other provision of this
Agreement, the parties agree that the assets and liabilities of each series of a
Trust are separate and distinct from the assets and liabilities of each other
series of that Trust and that no series of a Trust shall be liable or shall be
charged for any debt, obligation, liability, fee or expense arising under this
Agreement, the Notes or out of or in connection with any transaction other than
one entered into by or on behalf of itself. The Funds shall (i) as provided in
Section 4.1(g), (ii) to the extent feasible, at least five (5) Business Days in
advance of a date on which a payment in respect of a debt, obligation,
liability, fee or expense arising hereunder (other than principal of or interest
on a Loan) shall be due and payable and (iii) upon request of the Agent, cause
to be provided to the Agent an Allocation Notice; provided, however, should the
Funds fail to deliver to the Agent an Allocation Notice with respect to such
amounts within five Business Days following a request for the same by the Agent,
the Funds shall be liable therefor to the Agent and/or the Banks in the
proportion set forth in the Allocation Notice most recently delivered to the
Agent.
(b) The parties hereto acknowledge that the Trust Agreement for each
Trust is on file with the Secretary of State of The Commonwealth of
Massachusetts and the Clerk of the City of Boston. With respect to each Trust,
the parties hereby agree that this Agreement is not executed on behalf of the
trustees of such Trust as individuals; that the obligations of any Fund of such
Trust under this Agreement, its Notes and any claims, obligations or liabilities
arising hereunder are not binding on any of the trustees, officers or
shareholders of such Trust individually but are binding upon only the assets and
property of such Fund; and that no Fund or series of a Trust will be held liable
for the obligations or liabilities of any other Fund or series of that Trust.
(c) Nothing in this Section 2.14 shall affect the Banks' rights
against Adviser Persons as provided in Section 1.5.
2.15.Swing Loans. (a) BofA may elect in its sole discretion to make revolving
loans of a Base Rate Loan Type (the "Swing Loan(s)") to a Fund solely for BofA's
own account from time to time on or after the Closing Date and prior to the
Commitment Termination Date up to an aggregate principal amount at any one time
outstanding not to exceed the lesser of (i) $50,000,000 or (ii) the maximum
aggregate principal amount relating to BofA's Commitment available and permitted
under Section 2.1. BofA may make Swing Loans (subject to the conditions
precedent set forth in Section 4.2), provided that BofA has received notice no
later than 12:00 p.m. (San Francisco time) either (i) by facsimile transmission
of a Loan Request in writing or (ii) by telephone notice from an Authorized
Officer of the relevant Fund for funding of a Swing Loan on the Business Day on
which such Swing Loan is requested to be made. The relevant Fund shall
simultaneously also give telephonic notice to the Agent of such Loan Request for
a Swing Loan and the Agent shall promptly notify each Bank of its receipt of
such Loan Request for a Swing Loan. BofA shall not make any Swing Loan
immediately after BofA becomes aware that one or more of the conditions
precedent contained in Section 4.2 is not satisfied until such conditions have
been satisfied or waived.
(b) Each Fund requesting by telephone notice and obtaining a Swing Loan
shall deliver promptly by facsimile transmission to BofA and the Agent a Loan
Request signed by an Authorized Officer confirming such telephonic notice for a
Swing Loan. If the information contained in any such Loan Request differs in any
material respect from the action taken by BofA, the records of BofA shall
govern, absent manifest error.
(c) Each outstanding Swing Loan shall be payable on the Business Day
next following the day the Swing Loan was made, with interest at the Base Rate
accrued thereon, and shall be subject to all the terms and conditions applicable
to Loans, except that all interest thereon shall be payable to BofA solely for
its own account. On the due date for such Swing Loan, unless the borrowing Fund
delivers or has previously delivered to BofA and the Agent a notice of its
intention to repay and does repay the Swing Loan prior to 8:00 a.m. (San
Francisco time), such Swing Loan shall automatically convert to a Base Rate Loan
under this Agreement, and each Bank (other than BofA) shall irrevocably and
unconditionally purchase from BofA, without recourse or warranty to BofA, an
undivided interest and participation in such Swing Loan in an amount equal to
such Bank's Pro Rata Share and promptly pay such amount to the Agent for the
benefit of BofA in immediately available funds. Such payment shall be made by
the other Banks whether or not a Default is then continuing or any other
condition precedent set forth in Section 4.2 is then met and whether or not the
relevant Fund has then requested a Loan in such amount. If such amount is not in
fact paid to BofA by any Bank, BofA shall be entitled to recover such amount on
demand from such Bank, together with accrued interest thereon from the due date
therefor (if made prior to 12:00 noon, San Francisco time) on any Business Day
until the date such amount is paid to BofA by such Bank, at the Federal Funds
Rate (as determined by the Agent) for the first three Business Days after such
Bank receives notice of such required purchase and thereafter at the Base Rate.
The failure of any Bank to pay such amount to the Agent for the benefit of BofA
shall not relieve any other Bank of its obligation to BofA hereunder.
Notwithstanding the foregoing, upon repayment by the borrowing Fund of
a Swing Loan made by BofA hereunder, such Fund on that due date may otherwise
deliver a Loan Request to the Agent pursuant to Section 2.3 and borrow Loans
subject to the terms of this Agreement from all the Banks.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1. Taxes. (a) Any and all payments by a Fund to each Bank or the Agent
underthis Agreement and any other Credit Document shall be made free and clear
of, and without deduction or withholding for, any Taxes. In addition, each Fund
shall pay all Other Taxes.
b) Each Fund agrees to indemnify and hold harmless each Bank and the Agent for
the full amount of Taxes or Other Taxes in connection with a payment by it
(including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable by it under this Section) paid by the Bank or the Agent and any
liability (including penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within thirty (30) days after the date the Bank or the Agent makes written
demand therefor.
c) If a Fund shall be required by law to deduct or withhold any Taxes or Other
Taxes from or in respect of any sum payable hereunder to any Bank or the Agent,
then:
(i) the sum payable shall be increased as necessary so that after making all
required deductions and withholdings (including deductions and withholdings
applicable to additional sums payable under this Section), such Bank or the
Agent, as the case may be, receives an amount equal to the sum it would have
received had no such deductions or withholdings been made;
(ii) the Fund shall make such deductions and withholdings;
(iii)the Fund shall pay the full amount deducted or withheld to the relevant
taxing authority or other authority in accordance with applicable law; and
(iv)the Fund shall also pay to the Agent for the account of such Bank, at the
time interest is paid, all additional amounts which the respective Bank
specifies as necessary to preserve the after-tax yield the Bank would have
received if such Taxes or Other Taxes had not been imposed.
d) Within 30 days after the date of any payment by a Fund of Taxes or Other
Taxes, the Fund shall furnish the Agent the original or a certified copy of a
receipt evidencing payment thereof or other evidence of payment satisfactory to
the Agent.
e) If a Fund is required to pay additional amounts to any Bank or the Agent
pursuant to subsection (c) of this Section, then such Bank shall use reasonable
efforts (consistent with legal and regulatory restrictions) to change the
jurisdiction of its Lending Office so as to eliminate any such additional
payment by the Fund which may thereafter accrue, if such change in the judgment
of such Bank is not otherwise disadvantageous to such Bank.
To the extent appropriate, payments by any Fund under this Section 3.1
shall be subject to the Allocation Notice requirements under Section 2.14(a).
3.2. Illegality.(a) If any Bank reasonably determines that the introduction of
any Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its applicable Lending Office to make
Offshore Rate Loans, then, on notice thereof by the Bank to the Funds through
the Agent, any obligation of that Bank to make Offshore Rate Loans shall be
suspended until the Bank gives notice, and the Bank agrees promptly to give such
notice, to the Agent and the Funds when the circumstances giving rise to such
determination no longer exist.
b) If a Bank reasonably determines that it is unlawful to maintain any Offshore
Rate Loan, a Fund shall, upon its receipt of notice of such fact and demand from
such Bank (with a copy to the Agent), prepay in full such Offshore Rate Loans of
that Bank then outstanding, together with interest accrued thereon and amounts
required under Section 3.4, either on the last day of the Interest Period
thereof, if the Bank may lawfully continue to maintain such Offshore Rate Loans
to such day, or immediately, if the Bank may not lawfully continue to maintain
such Offshore Rate Loan, as provided in a notice from the Bank to the relevant
Fund(s). If a Fund is required to so prepay any Offshore Rate Loan, then
concurrently with such prepayment, the Fund may borrow from the affected Bank,
in the amount of such repayment, a Base Rate Loan or a Federal Funds Rate Loan,
as designated by such borrowing Fund pursuant to Section 2.3.
c) If the obligation of any Bank to make or maintain Offshore Rate Loans has
been so terminated or suspended, the relevant Fund(s) may elect, by giving
notice to the Bank through the Agent, that all Loans that would otherwise be
made by the Bank as Offshore Rate Loans shall be instead Base Rate Loans or
Federal Funds Rate Loans, as designated by the relevant Fund(s).
d) Before giving any notice to the Agent under this Section, the affected Bank
shall designate a different Lending Office with respect to its Offshore Rate
Loans if such designation will avoid the need for giving such notice or making
such demand and will not, in the judgment of the Bank, be illegal or otherwise
disadvantageous to the Bank.
3.3. Increased Costs and Reduction of Return.(a) If any Bank reasonably
determines that, due to the introduction of or any change in or in the
interpretation of any law or regulation or the compliance by that Bank with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to such Bank of agreeing to make or making, funding or maintaining any
Offshore Rate Loans, then the affected Fund shall be liable for, and shall from
time to time upon demand (with a copy of such demand to be sent to the Agent)
pay to the Agent, for the account of such Bank, additional amounts as are
sufficient to compensate such Bank for such increased costs.
b) If any Bank shall have determined that (i) the introduction of any Capital
Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation, (iii)
any change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority charged with the
interpretation or administration thereof or (iv) compliance by the Bank (or its
Lending Office) or any corporation controlling the Bank with any Capital
Adequacy Regulation affects or would affect the amount of capital required or
expected to be maintained by the Bank or any corporation controlling the Bank
and (taking into consideration such Bank's or such corporation's policies with
respect to capital adequacy and such Bank's desired return on capital)
determines that the amount of such capital is increased as a consequence of its
Commitment, Loans, credits or other obligations under this Agreement, then, upon
demand of such Bank to the affected Fund through the Agent, the affected Fund
shall pay to the Bank, from time to time as specified by the Bank, additional
amounts sufficient to compensate the Bank for such increase.
3.4. Funding Losses. Each Fund shall reimburse each Bank and hold each Bank
harmless from any loss or expense that the Bank may reasonably sustain or incur
as a consequence of:
a) the failure of such Fund to make on a timely basis any payment of principal
of any Offshore Rate Loan;
b) the failure of such Fund to borrow, continue or convert a Loan after the
Fund has given (or is deemed to have given) a Loan Request or a
Conversion/Continuation Notice;
c) the failure of such Fund to make any prepayment in accordance with any
notice delivered under Section 2.6; or
d) the prepayment or other payment (including after acceleration thereof) of
an Offshore Rate Loan on a day that is not the last day of the relevant
Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by a Fund to the Banks under this Section 3.4 and
under Section 3.3(b), each Offshore Rate Loan made by a Bank (and each related
reserve, special deposit or similar requirement) shall be conclusively deemed to
have been funded at the IBOR used in determining the Offshore Rate for such
Offshore Rate Loan by a matching deposit or other borrowing in the interbank
eurodollar market for a comparable amount and for a comparable period, whether
or not such Offshore Rate Loan is in fact so funded.
3.5. Inability to Determine Rates. If the Agent determines that for any reason
adequate and reasonable means do not exist for determining the Offshore Rate for
any requested Interest Period with respect to a proposed Offshore Rate Loan or
that the Offshore Rate applicable pursuant to Section 2.8(a) for any requested
Interest Period with respect to a proposed Offshore Rate Loan does not
adequately and fairly reflect the cost to any Bank of funding such Loan, the
Agent will promptly so notify the affected Fund and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans hereunder shall
be suspended until the Agent gives notice (and, if appropriate, the Agent shall
give such notice) to the Funds that adequate and reasonable means do exist for
determining such Offshore Rate or such Offshore Rate does adequately and fairly
reflect the costs to the Banks of funding such Loans. Upon receipt of such
notice, the affected Fund may revoke any Loan Request or Conversion/Continuation
Notice then submitted by it. If the affected Fund does not revoke such Notice,
the Banks shall make, convert or continue the Loans, as proposed by such Fund,
in the amount specified in the applicable notice submitted by the Fund, but such
Loans shall be made, converted or continued as Base Rate Loans or Federal Funds
Rate Loans instead of Offshore Rate Loans as the Fund so elects in its
revocation notice.
3.6. Certificates of Banks. Any Bank claiming reimbursement or compensation
under this Article III shall deliver to the affected Fund (with a copy to the
Agent) a certificate setting forth in reasonable detail the amount payable to
the Bank hereunder, and such certificate shall be conclusive and binding on such
Fund in the absence of manifest error.
3.7. Substitution of Banks. Upon the receipt by a Fund from any Bank (an
"Affected Bank") of a claim for compensation under Section 3.3, such Fund may:
(i) request the Affected Bank to use its best efforts to obtain a replacement
bank or financial institution satisfactory to such Fund to acquire and assume
all or a ratable part of all of such Affected Bank's Loans and Commitment (a
"Replacement Bank"); (ii) request one more of the other Banks to acquire and
assume all or part of such Affected Bank's Loans and Commitment (it being
understood that no such other Bank shall be in any way required to effect any
such acquisition and assumption); or (iii) designate a Replacement Bank. Any
such designation of a Replacement Bank under clause (i) or (iii) shall be
subject to the prior written consent of the Agent (which consent shall not be
unreasonably withheld) and payment in full of all amounts due and owing
hereunder to the Replacement Bank.
3.8. Survival. The agreements and obligations of the Funds in this Article III
shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS TO BORROWING
4.1. Conditions Precedent to and Consequences of Effectiveness of Amendments.
The amendment, restatement and replacement effected by this Agreement shall
become effective on the date (the "Refinancing Date") on which the conditions
precedent specified in this Section 4.1 shall have been satisfied or waived by
the Agent and all the Banks that are signatories to this document. The
occurrence of the Refinancing shall be subject to (i) the receipt by the Agent
of duly executed counterparts of this amended and restated Agreement signed by
all the parties hereto (or evidence satisfactory to the Agent that all the
parties hereto have executed counterparts of this Agreement and dispatched them
to the Agent) and (ii) satisfaction of the following:
(a) The Agent shall have received from each Trust a certificate, dated the
date hereof, of its Secretary or Assistant Secretary as to
(i) resolutions of its board of trustees then in full force and effect
authorizing the execution, delivery and performance of this Agreement,
the Notes and each other Credit Document to be executed by it;
(ii) the incumbency and signatures of those of its officers or agents
authorized to act with respect to this Agreement, the Notes and each
other Credit Document executed by it;
(iii) such Trust's valid existence as evidenced by a certificate
issued by the Secretary of State of The Commonwealth of Massachusetts
and appended to the relevant certificate of its Secretary or Assistant
Secretary; and
(iv) the fact that the agreements delivered by the Trusts pursuant to
Section 4.1(e) constitute all such agreements between the Trusts and
the Adviser;
upon which certificates the Agent and each Bank may conclusively rely until
they shall have received a further certificate from the relevant Trust
canceling or amending such prior certificate.
(b) The Agent shall have received for the account of each Bank a Note of
each Fund duly executed and delivered by the relevant Trust on behalf of
each such Fund and made payable to the order of such Bank.
(c) The Agent shall have received an opinion, dated the date hereof and
addressed to the Agent and all Banks, from Ropes & Xxxx, counsel to the
Funds, substantially in the form of Exhibit 4.1(c), which the Trusts hereby
expressly authorize and instruct such counsel to prepare and deliver.
(d) The Agent shall have received evidence of payment of all accrued and
unpaid fees, costs and expenses to the extent then due and payable on the
Refinancing Date, together with Attorney Costs of the Agent to the extent
invoiced prior to or on the Refinancing Date, plus such additional amounts
of Attorney Costs as shall constitute the Agent's reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude
final settling of accounts between the Funds and the Agent), including any
such costs, fees and expenses arising under or referenced in Section 2.9(a)
and those then due and payable pursuant to Section 9.4.
(e) The Agent shall have received copies of each investment advisory
agreement between the Trust for each New Borrower Party and the Adviser,
together with all sub-advisory agreements, if any.
(f) The Agent shall have received a Borrowing Base Certificate for each
Fund.
(g) The Agent shall have received a revised Allocation Notice.
(h) The Agent shall have received copies of the most recent prospectus and
statement of additional information for each Fund.
(i) The Agent shall have received with respect to each New Borrower Party a
duly completed and executed FRB Form FR U-1 as required pursuant to FRB
Regulation U (12 C.F.R. ss. 221.1 et seq.).
4.2. All Borrowings. The obligation of each Bank to fund any Loan on the
occasion of any Borrowing (including the initial Borrowing) by a Fund or to
continue or convert a Loan to a Fund as contemplated in a
Continuation/Conversion Notice submitted to the Agent by such Fund shall be
subject to the satisfaction of each of the conditions precedent set forth in
this Section 4.2.
(a) No Default shall have occurred and be continuing with respect to the
borrowing Fund.
(b) The representations and warranties of the borrowing Fund contained in
Article V (except to the extent such representations and warranties relate
solely to an earlier date, in which case they shall be true and correct as
of such earlier date) shall be true and correct in all material respects on
and as of the date of such Borrowing, both immediately before and after
giving effect to such Borrowing, as if then made.
(c) Except as disclosed by the borrowing Fund to the Agent and the Banks
pursuant to Section 5.7, no labor controversy, litigation, arbitration, or
governmental investigation or proceeding shall be pending and no
development shall have occurred with respect to such matters or, to the
knowledge of such Fund, threatened against it that, in the reasonable
opinion of the Banks, might materially affect the Fund's consolidated
business, operations, assets, revenues, properties or prospects or that
purports to affect the legality, validity or enforceability of this
Agreement, the Notes or any other Credit Document.
(d) In the case of a Borrowing, the Agent shall have received a Loan
Request for such Borrowing and, in the case of a continuation or conversion
of a Borrowing, a Continuation/Conversion Notice for such Borrowing. Each
of the delivery of a Loan Request or Continuation/Conversion Notice and, in
the case of a Borrowing, the acceptance by the relevant Fund of the
proceeds of such Borrowing shall constitute a representation and warranty
by such Fund that on the date of such Borrowing (both immediately before
and after giving effect to such Borrowing and the application of the
proceeds thereof) or continuation or conversion, as the case may be, the
statements made in Sections 4.2(a), (b), (c), (f) and (g) and in the
document referred to in Section 4.2(e) are true and correct.
(e) The Net Asset Value of the borrowing Fund at the time of delivery of a
Loan Request shall be at least $10,000,000.
f) Both before and after the Loan in question, the borrowing Fund's Asset
Coverage Ratio shall be at least 3 to 1.
(g) With respect to such Fund, there shall not have been outstanding as of
the close of business (San Francisco time) on the day preceding the
proposed Borrowing Date for the requested Loan a Loan that had been
outstanding for at least two weeks.
Any instrument, agreement or other document to be received by the Agent
pursuant to this Article IV, and any other condition precedent required to be
met or satisfied under this Article IV, shall be in form and substance
reasonably satisfactory to the Agent and each Bank and in sufficient copies for
each Bank.
4.3. Consequences of Effectiveness. On the Refinancing Date, the Existing
Agreement shall be automatically amended and restated to read as set forth
herein. On and after the Refinancing Date, the rights and obligations of the
parties hereto shall be governed by this Agreement; provided that rights and
obligations of the parties hereto with respect to the period prior to the
Refinancing Date shall continue to be governed by the provisions of the Existing
Agreement. With effect from and including the Refinancing Date, each Person
listed on the signature pages hereof that is not a party to the Existing
Agreement shall become a party to this Agreement and the Commitments and Pro
Rata Shares shall be as set forth in Schedule II appended to this document.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks and the Agent to enter into the Agreement
as amended and restated by this document and to make Loans hereunder, each Fund
and, to the extent hereinafter set forth, each Trust represents and warrants
unto the Agent and each Bank with respect to itself as set forth in this Article
V. The representations and warranties contained in this Article V shall be
deemed to be repeated each time that a Fund requests that a Loan be made as
provided in Article IV.
5.1. Existence. Each Trust is an open-end management investment company within
the meaning of the Act and is duly organized, validly existing and in good
standing under the laws of the state of its organization. Such Trust is in good
standing and is duly qualified to do business in The Commonwealth of
Massachusetts. Each Fund is a series of shares of beneficial interest in the
Trust of which it comprises a series (which shares have been and will be duly
authorized, validly issued, fully paid and non-assessable by such Trust) and
legally constitutes a fund or portfolio permitted to be marketed to investors
pursuant to the provisions of the Act.
5.2. Authorization. Each Trust is duly authorized to execute and deliver this
Agreement and the Notes of each of its Funds and, so long as this Agreement
shall remain in effect with respect to it, each of its Funds will continue to be
duly authorized to borrow monies hereunder on its own behalf and to perform its
obligations under this Agreement and its Notes. The execution, delivery and
performance by each Trust and its Funds of this Agreement and the Notes and the
Borrowings of each Fund do not and will not require any consent or approval of
or registration with any governmental agency or authority.
5.3. No Conflicts. The execution, delivery and performance by each Trust and
each Fund of this Agreement and the Notes do not and, so long as this Agreement
shall remain in effect with respect to them, will not (i) conflict with any
provision of law, (ii) conflict with the Trust Agreement of the Trust of which
any Fund comprises a series, (iii) conflict with any agreement binding upon
them, (iv) conflict with the Fund's most recent prospectus or its most recent
statement of additional information, (v) conflict with any court or
administrative order or decree applicable to them or (vi) require or result in
the creation or imposition of any Lien on any of the Fund's assets.
5.4. Validity and Binding Effect. This Agreement is, and the Notes when duly
executed and delivered will be, the legal, valid and binding obligation of each
Fund, enforceable against it in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
receivership, fraudulent conveyance, fraudulent transfer, moratorium or other
similar laws of general application affecting the enforcement of creditors'
rights or by general principles of equity limiting the availability of equitable
remedies.
5.5. No Default. No Fund is in default under any agreement or instrument to
which it is a party or by which it or any of its respective properties or assets
is bound or affected, other than minor defaults that could not reasonably be
expected to result in a Material Adverse Change. To the best of each Fund's
knowledge, no Default with respect to it has occurred and is continuing.
5.6. Financial Statements. With respect to each Fund, its most recent audited
Statement of Assets and Liabilities and its most recent semi-annual asset
statement, copies of which have been or will be furnished to the Banks, have
been prepared in conformity with GAAP applied on a basis consistent with that of
the preceding Fiscal Year or period and present fairly its financial condition
as at such dates and the results of its operations for the periods then ended,
subject (in the case of the interim financial statement) to year-end audit
adjustments. Since the date of the most recent Statement of Assets and
Liabilities and semi-annual asset statement of the Fund received by the Banks,
there has been no Material Adverse Change.
5.7. Litigation. With respect to each Fund, no claims, litigation, arbitration
proceedings or governmental proceedings that could reasonably be expected to
result in a Material Adverse Change are pending or, to the best of its
knowledge, threatened against or are affecting it, except those referred to in
Exhibit 5.7-1. Other than any liability incident to such claims, litigation or
proceedings or provided for or disclosed in the financial statements referred to
in Section 5.6 or listed on Exhibit 5.7-2, to the best of such Fund's knowledge,
it has no contingent liabilities that are material to it other than those
incurred in the ordinary course of business.
5.8. Liens. With respect to each Fund, none of its property, revenues or assets
is subject to any Lien, except (i) Liens in favor of the Banks, if any, (ii)
Liens for current Taxes not delinquent or Taxes being contested in good faith
and by appropriate proceedings and as to which such reserves or other
appropriate provisions as may be required by GAAP are being maintained, (iii)
Liens as are necessary in connection with a secured letter of credit opened by
or for it in connection with the trustees' and officers' errors and omissions
liability insurance policy of the Trust of which it comprises a series, (iv)
Liens incurred in connection with Financial Contracts, (v) Liens arising under
any custodian agreement to which it or the Trust of which it is a series is a
party and (vi) Liens incurred in connection with Indebtedness owing to another
Fund as permitted hereunder.
5.9 Partnerships. With respect to each Fund, it is not a general partner or
joint venturer in any partnership or joint venture; provided, however, it may be
a "feeder" fund in a "master/feeder" fund arrangement.
5.10. Purpose. With respect to each Fund, the proceeds of the Loans will be used
by it for short-term liquidity and other temporary emergency purposes, which
purposes are permitted under the Act and by its prospectus and statement of
additional information. Neither the making of any Loan nor the use of the
proceeds thereof will violate or be inconsistent with the provisions of Federal
Reserve Board Regulations T, U or X. Each Fund acknowledges that Loans made to
it may be deemed by the Federal Reserve Board to be "purpose loans" under
Regulation U because of the status of the Trust of which it is a series as an
investment company (or the functional equivalent thereof).
5.11. Compliance and Government Approvals. Each Trust or Fund is in compliance
with all statutes and governmental rules and regulations applicable to it,
including, without limitation, the Act, other than immaterial incidents of
non-compliance that could not reasonably be expected to result in a Material
Adverse Change. No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or other person
is required for the due execution, delivery or performance by such Trust or Fund
of this Agreement, the Notes or any of the other Credit Documents.
5.12. Pension and Welfare Plans. No Trust or Fund has established or maintained,
nor is it liable under, any Plan.
5.13. Taxes. Each Trust and Fund has filed all tax returns that are required to
have been filed and has paid, or made adequate provisions for the payment of,
all of its Taxes that are due and payable, except such Taxes, if any, as are
being contested in good faith and by appropriate proceedings and as to which
such reserves or other appropriate provisions as may be required by GAAP have
been maintained. Such Trust or Fund is not aware of any proposed assessment
against it for additional Taxes (or any basis for any such assessment) that
might be material in amount to it. Such Trust or Fund has substantially complied
with all requirements of the Code applicable to regulated investment companies
so as to be relieved of federal income tax on net investment income and net
capital gains distributed to its shareholders.
5.14. Subsidiaries; Investments. No Trust or Fund has Subsidiaries or equity
investments or any interest in any other Person other than portfolio securities
(including investment company securities) that may have been acquired in the
ordinary course of business.
5.15. Full Disclosure. No representation or warranty contained in this Agreement
or in any other document or instrument furnished by a Trust or Fund to the Banks
in connection herewith contains any untrue statement of any material fact as of
the date when made or omits to state any material fact necessary to make the
statements herein or therein not misleading as of the date when made in light of
the circumstances in which the same were made.
5.16. Investment Policies. Each Fund's assets are being invested substantially
in accordance with the investment policies and restrictions set forth in each of
its most recent prospectus and its most recent statement of additional
information.
5.17. Tax Status. Each Fund has taken all steps reasonably necessary to maintain
its status as a regulated investment company under the Code with respect to net
investment income and net capital gains.
5.18. Regulations T, U and X. No Trust or Fund is engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock, and no
proceeds of any Loans will be used for a purpose that violates or would be
inconsistent with FRB Regulations T, U and X.
5.19. Status of Loans. Each Fund's obligation in connection with the repayment
of any Loans made to it hereunder shall at all times constitute its
unconditional Indebtedness and will rank at least pari passu in priority of
payment with all of its other present and future unsecured and unsubordinated
Indebtedness.
5.20. Computer Systems. There has been developed and implemented for each Trust
a comprehensive, detailed program to address on a timely basis the "Year 2000
Problem" (that is, the risk that computer applications used by the Trusts may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999), and each Trust
reasonably anticipates that it will on a timely basis successfully resolve the
Year 2000 Problem for all material computer applications used by it. Each Trust
believes, based upon inquiry made, that each supplier and vendor of the Trust
that is of material importance to the financial well-being of the Trust will
also successfully resolve on a timely basis the Year 2000 Problem for all of its
material computer applications.
ARTICLE VI
COVENANTS
From the date of this Agreement and thereafter until the expiration or
termination of the Commitments and until all Obligations have been paid or
performed in full, each Fund and each Trust shall perform the obligations made
applicable to it in this Article VI.
6.1 Financial Statements and Other Reports. Each Fund shall deliver to the
Agent, with sufficient copies for each Bank:
(a) As soon as available and in any event within sixty (60) days after each
of its Fiscal Years, a copy of its annual audited Statement of Assets and
Liabilities, including a statement of investments, prepared in conformity
with GAAP and certified by an independent certified public accountant who,
in the commercially reasonable judgment of the Majority Banks, shall be
satisfactory to the Majority Banks, together with a certificate from such
accountant (i) acknowledging to the Banks such accountant's understanding
that the Banks are relying on such Statement of Assets and Liabilities,
(ii) containing a computation of, and showing compliance with, the
financial ratio contained in Section 6.12 and (iii) stating to the effect
that, in making the examination necessary for the signing of such Statement
of Assets and Liabilities, such accountant has not become aware of any
Default that has occurred and is continuing, or if such accountant has
become aware of any such event, describing it and the steps, if any, being
taken to cure it;
(b) Within sixty (60) days after the end of the first six months of its
Fiscal Year, a copy of its published semi-annual asset statement, prepared
in conformity with GAAP;
(c) Within fifteen (15) days after the end of each calendar quarter, a
certificate substantially in the form of Exhibit 6.1 ("Borrowing Base
Certificate") setting forth (A) its borrowing base (as calculated in the
manner contemplated by the form of Borrowing Base Certificate) ("Borrowing
Base"), (B) its Asset Coverage Ratio as of the last day of such calendar
quarter and (C) a statement to the effect that, to the best of the
knowledge of the Authorized Officer signing the Borrowing Base Certificate,
no Default has occurred and is continuing or, if an Event of Default has
occurred and is continuing, the steps being taken to remedy the same;
(d) (i) Within fifteen (15) days following the filing thereof, any
preliminary proxy materials filed with the Securities and Exchange
Commission and (ii) within fifteen (15) days after the same become
available, copies of its current prospectus and statement of additional
information (marked to show changes from the prospectus and statement of
additional information most recently delivered to the Banks), except that
if its investment policies are changed materially (including any change in
its ability to borrow hereunder), copies of a revised prospectus (or a
prospectus supplement) and statement of additional information (marked to
show changes from the prospectus (or prospectus supplement) and statement
of additional information most recently delivered to the Banks) reflecting
any such changes shall be provided to the Agent within fifteen (15) days
after the same become available; and
(e) Promptly from time to time such other reports or information as any of
the Banks may reasonably request.
6.2. Notices. Each Fund shall notify the Banks in writing of any of the
following immediately upon learning of the occurrence thereof, describing the
same and, if applicable, stating the steps being taken by the Person(s) affected
with respect thereto:
(a) the occurrence of a Default;
(b) the institution of any litigation, arbitration proceeding or
governmental proceeding that is likely to result in a Material Adverse
Change;
(c) the entry of any judgment or decree against it if the aggregate amount
of all judgments and decrees then outstanding against it exceeds the lesser
of five percent (5%) of its Net Asset Value or $5,000,000 after deducting
(i) the amount with respect to which it is insured and with respect to
which the insurer has assumed responsibility in writing and (ii) the amount
for which it is otherwise indemnified if the terms of such indemnification
and the Person providing such indemnification are satisfactory to the
Majority Banks;
(d) the occurrence of a change of its name (whether of its legal name or a
"d/b/a" designation). The Trust of which such Fund is a series, on behalf
of each of the affected Fund(s), shall promptly execute and deliver to each
Bank a new Note for each such Fund executed in its new name, together with
such other documents in connection therewith as the Banks shall reasonably
request;
(e) the scheduling of consideration by the board of trustees of the Trust
of which it comprises a series of a change in such Fund's Adviser,
distributor, administrator, custodian (unless such custodian is a Bank) or
independent accountant, or the appointment of any sub-adviser or any Person
acting in a similar capacity to an Adviser; provided that a mailing to
shareholders with respect to any of the foregoing shall not be deemed to be
sufficient notice hereunder; and
(f) the occurrence of such other events as the Agent may from time to time
reasonably specify.
Notwithstanding anything to the contrary in the foregoing, in the case
of the matters described in subparagraph (e), the notice contemplated by this
Section 6.2 shall be given not later than thirty (30) days prior to the time (i)
the board of trustees of the affected Trust is to consider approval of such
change or appointment or otherwise determines to recommend such change or
appointment (if necessary) to the Fund's shareholders for their approval and
(ii) of any change of such Fund's custodian; provided, however, if, in the case
of the matters contemplated by subparagraph (e), the affected Fund could not in
good faith have provided the specified advance notice, such notice shall be
given by such Fund immediately following the earliest feasible time the notice
could have been provided.
6.3. Existence. Each Trust, except as specified in Section 6.11(a), shall
maintain and preserve its existence as a registered investment company and the
respective existence of each of its Funds as a "series," within the meaning of
the Act, and maintain and preserve all rights, privileges, licenses, copyrights,
trademarks, trade names, franchises and other authority to the extent material
and necessary for the conduct of its business in the ordinary course, unless
none of the Funds comprising such Trust has Loans outstanding and each such Fund
has irrevocably notified the Agent (which shall thereupon promptly notify the
Banks) that it shall not request any Loans hereunder.
6.4. Nature of Business. Each Trust shall continue in, and limit its operations
to, the business of an open-end management investment company, within the
meaning of the Act, and maintain in full force and effect at all times all
governmental licenses, registrations, permits and approvals necessary for the
continued conduct of its business, including, without limitation, its
registration with the Securities and Exchange Commission under the Act as an
open-end investment company.
6.5. Books, Records and Access. Each Trust and Fund shall maintain complete and
accurate books and records in which full and correct entries in conformity with
GAAP shall be made of all transactions in relation to its business and
activities; upon reasonable notice, the Trust or Fund shall permit access by the
Banks to its books and records during normal business hours and permit the Banks
to make copies of such books and records.
6.6. Insurance. Each Trust and Fund shall maintain in full force and effect
insurance to such extent and against such liabilities as is commonly maintained
by companies similarly situated, including, but not limited to (i) such fidelity
bond coverage as shall be required by Rule 17g-1 promulgated under the Act or
any similar or successor provision and (ii) errors and omissions, director and
officer liability and other insurance against such risks and in such amounts
(and with such co-insurance and deductibles) as is usually carried by other
companies of established reputation engaged in the same or similar businesses
and similarly situated and will, upon request of the Agent, furnish to the Banks
a certificate of an Authorized Officer setting forth the nature and extent of
all insurance maintained by such Trust or Fund in accordance with this Section
6.6.
6.7. Investment Policies and Restrictions.(a) No Fund, without prior written
notice to the Agent of at least thirty (30) days, shall rescind, amend or modify
any investment policy described as "fundamental" in any prospectus or any
registration statement(s) that may be on file with the Securities and Exchange
Commission with respect thereto (collectively herein, a "proposed change"). If,
in the reasonable judgment of the Majority Banks, such proposed change will
result in a change in the Banks' analysis of the creditworthiness of the
affected Fund, the Agent shall notify the relevant Fund of such decision;
thereafter, if such proposed change is implemented with respect to such Fund,
the Banks may terminate their Commitments to lend to such Fund, and all Loans
outstanding to such Fund shall become immediately due and payable.
(b) Each Fund's investment in any of its assets shall be made in accordance with
its investment policies and restrictions set forth in its most recent prospectus
and statement of additional information.
6.8. Taxes. Each Trust and Fund shall pay when due all of its Taxes, unless and
only to the extent that such Taxes are being contested in good faith and by
appropriate proceedings and it shall have set aside on its books such reserves
or other appropriate provisions therefor as may be required by GAAP. Such Trust
or Fund shall at all times comply with all requirements of the Code applicable
to regulated investment companies, to such effect as not to be subject to
federal income taxes on net investment income and net capital gains distributed
to its shareholders.
6.9. Compliance. Each Trust and Fund shall comply in all material respects with
all statutes and governmental rules and regulations applicable to it, including,
without limitation, the Act.
6.10. Pension Plans. No Fund will enter into, or incur any liability relating
to, any Plan.
6.11. Merger, Purchase and Sale. No Trust or Fund shall:
(a) be a party to any merger or consolidation; provided, however, that any
Trust or Fund can merge or consolidate with any other Person in accordance
with 17 C.F.R. ss. 270.17a-8 if (i) such merger or consolidation complies
in all material respects with the requirements of 17 C.F.R. ss. 270.17a-8
and all rules promulgated in connection therewith, (ii) the surviving
entity assumes all of the obligations to the Banks of the merging or
consolidating Trusts and/or Funds prior to such merger or consolidation and
(iii) in the good faith judgment of all the Banks, the financial condition
and investment policies and restrictions of the surviving entity are not
fundamentally different from those of the merging or consolidating Trusts
and/or Funds prior to such merger or consolidation;
(b) except as permitted by Section 6.11(a) and except for sales or other
dispositions of portfolio securities in the ordinary course of its business
or to meet shareholder redemption requests, sell, transfer, convey, lease
or otherwise dispose of all or any substantial part of its assets;
provided, however, that any Fund or Trust can sell substantially all of its
assets to another Person in accordance with 17 C.F.R. ss. 270.17a-8 if (i)
such sale complies in all material respects with the requirements of 17
C.F.R. ss. 270.17a-8 and all rules promulgated in connection therewith,
(ii) the purchasing entity assumes all obligations to the Banks of the
selling Fund prior to such sale and (iii) in the good faith judgment of all
the Banks, the financial condition and investment policies and restrictions
of the purchasing entity are not fundamentally different from those of the
selling Fund prior the to asset sale; or
(c) except as permitted by Section 6.11(a), purchase or otherwise acquire
all or substantially all the assets of any Person without the review and
consent thereto of all the Banks, which consent shall not be unreasonably
withheld.
For purposes of this Section 6.11 only, a sale, transfer, conveyance,
lease or other disposition of assets shall be deemed to be a "substantial part"
of the assets of any Trust or Fund only if the value of such assets, when added
to the value of all other assets sold, transferred, conveyed, leased or
otherwise disposed of by such Trust or Fund (other than in the normal course of
business or in a manner otherwise consistent with such Fund's investment
policies) during the same Fiscal Year, exceeds fifteen percent (15%) of such
Trust's or Fund's Total Assets determined as of the end of the immediately
preceding Fiscal Year.
6.12. Asset Coverage Ratio. Each Fund shall not at any time permit its Asset
Coverage Ratio to be less than 3 to 1 or such other more restrictive ratio as
may be set forth in any prospectus with respect to such Fund. In calculating the
ratio set forth in this Section 6.12, a Fund may not treat as an asset
Indebtedness owing to such Fund by any investment company advised by the Adviser
unless the Asset Coverage Ratio of such investment company is at least 3 to 1.
6.13. Liens. No Fund shall create or permit to exist any Lien with respect to
any property, revenues or assets now owned or hereafter acquired by it, except
(i) Liens in favor of the Banks, if any, (ii) Liens for current Taxes not
delinquent or Taxes being contested in good faith and by appropriate proceedings
and as to which such reserves or other appropriate provisions as may be required
by GAAP are being maintained, (iii) Liens as are necessary in connection with a
secured letter of credit opened by or on behalf of such Fund in connection with
the Fund's trustees' errors and omissions liability insurance policy, (iv) Liens
incurred in connection with Financial Contracts, (v) Liens arising under any
custodian agreement to which the Trust of which the Fund comprises a series is a
party and (vi) Liens incurred in connection with Indebtedness owing to another
Fund; provided, however, that prior to or simultaneously with incurring any such
Lien described in this clause (vi), such Fund shall have taken such actions as
the Banks may reasonably require in order to assure the Banks that any Loans to
such Fund that are or may be outstanding shall be equally and ratably secured
with the Indebtedness secured by such Lien; and provided that the value of any
of its assets subject to a Lien (other than the Liens contemplated by clause (i)
and clause (vi)) shall be excluded from calculation of its Borrowing Base.
6.14. Guaranties. No Fund shall become or be a guarantor or surety of, or
otherwise become or be responsible in any manner (whether by agreement to
purchase any obligations, stock, assets, goods or services, or to supply or
advance any funds, assets, goods or services, or otherwise) with respect to, any
undertaking of any other Person, except for the endorsement, in the ordinary
course of collection, of instruments payable to it or its order.
6.15. Other Agreements. No Trust or Fund shall enter into any agreement
containing any provision that would be violated or breached by performance of
its obligations hereunder or under any instrument or document delivered or to be
delivered by it hereunder or in connection herewith.
6.16. Transactions with Related Parties. No Fund shall enter into or be a party
to any transaction or arrangement, including, without limitation, the purchase,
sale, loan, lease or exchange of property or the rendering of any service, with
any Related Party, except in the ordinary course of and pursuant to the
reasonable requirements of its business and upon fair and reasonable terms no
less favorable to it than would be obtainable in a comparable arm's-length
transaction with a Person not a Related Party, provided that any such
transaction must be made in substantial compliance with Section 17 of the Act or
an exemption therefrom.
6.17. Other Indebtedness. No Fund shall incur or permit to exist any
Indebtedness, other than:
(i) the Loans;
(ii) unsecured Indebtedness owing to such Fund's custodian that does
not exceed an amount that, when aggregated with any other Indebtedness
owing by such Fund, will cause the Fund to exceed the limitations on
senior security indebtedness imposed by the Act;
(iii)Indebtedness owing to another Fund; provided that (a) any such
Indebtedness does not exceed an amount that, when aggregated with any
other Indebtedness owing by such Fund, will cause the Fund to exceed
the limitations on senior security indebtedness imposed by the Act;
(b) any such Indebtedness is on terms consistent with and otherwise
allowed by the Act and/or regulatory approval of the Securities and
Exchange Commission; (c) such Indebtedness is unsecured and no more
than pari passu in priority of payment with Indebtedness incurred or
to be incurred in the form of Loans or, prior to or simultaneously
with incurring any such Indebtedness that is to be secured by a Lien
on the Fund's assets, such Fund shall have taken such actions as the
Banks may reasonably require in order to assure the Banks that any
Loans to such Fund that are or may be outstanding are secured on a
basis that is equal and ratable to such Fund Indebtedness as to which
security is provided; and (d) such Indebtedness is subject to the
terms of an inter-creditor agreement in form and substance
satisfactory to the Agent and each Bank;
(iv) Indebtedness owing in respect of Financial Contracts incurred in
the ordinary course of business and in amounts not exceeding that
permitted by the Fund's investment policies; and
(v) Indebtedness owing in respect of payments due to trustees of the
Trusts under any deferred compensation plan; provided that such
payments shall not in the aggregate for all Funds exceed $750,000.
6.18.Changes to Organization Documents, etc. No Trust or Fund shall make or
permit to be made any material changes to its Organization Documents without the
prior written consent of the Majority Banks.
6.19. Violation of Investment Restrictions, etc. No Fund shall violate or take
any action that would result in a violation of any of the investment
restrictions or fundamental investment policies of such Fund as from time to
time in effect.
6.20. Proceeds of Loans. Each Fund shall utilize the proceeds of each Loan made
to it to provide temporary liquidity funding allowed under the Act. None of the
proceeds of any Loan shall be used directly for the purpose, whether immediate,
incidental or ultimate, of acquiring any "margin stock" within the meaning of
Regulation U.
6.21. Adviser. Each Fund shall maintain Colonial Management Associates, Inc. or
one of its Affiliates as Adviser to it.
6.22. Service Providers to Trust. No Fund shall change its distributor,
custodian, accountant or administrator unless the Majority Banks provide their
prior written consent to such change, which consent shall not be withheld by the
Majority Banks unless, based upon their reasonable judgment, the Majority Banks
in good faith conclude that such change will result in a change in the
creditworthiness of such Fund.
ARTICLE VII
EVENTS OF DEFAULT
7.1. Events of Default. Each of the following shall constitute an Event of
Default with respect to a Fund under this Agreement (it being understood that an
Event of Default with respect to a Fund shall not constitute an Event of Default
with respect to any other Fund):
(a) Default in payment by a Fund (i) when and as required to be paid herein
of any amount of principal of any Loan or (ii) within five (5) days after
the same becomes due of any interest, fee or any other amount payable
hereunder or under any other Credit Document.
(b) Default by a Fund in the payment when due, whether by acceleration or
otherwise (subject to any applicable grace period), of any Indebtedness of,
or guaranteed by, such Fund in excess of five percent (5%) of such Fund's
then-current Net Asset Value.
(c) Any event or condition shall occur that results in the acceleration of
the maturity of any Indebtedness of, or guaranteed by, a Fund or enables
the holder or holders of such other Indebtedness or any trustee or agent
for such holders (any required notice of default having been given and any
applicable grace period having expired) to accelerate the maturity of such
other Indebtedness in excess of five percent (5%) of such Fund's
then-current total Net Asset Value.
(d) Default by a Fund in the payment when due, whether by acceleration or
otherwise, or in the performance or observance (subject to applicable grace
periods, if any, having expired) of (i) any obligation or agreement of such
Fund to or with a Bank (other than any obligation or agreement of such Fund
hereunder or under such Fund's Notes) or (ii) any material obligation or
agreement of such Fund to or with any other Person, except only to the
extent that the existence of any such default is being contested by such
Fund in good faith and by appropriate proceedings and such Fund shall have
set aside on its books such reserves or other appropriate provisions
therefor as may be required by GAAP, provided that the amount of such
obligation arising from any default is in excess of five percent (5%) of
such Fund's then-current total Net Asset Value.
(e) A Fund (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) voluntarily ceases to conduct its business in the ordinary
course; (iii) commences any Insolvency Proceeding with respect to itself;
or (iv) takes any action to effectuate or authorize any of the foregoing.
(f) (i) Any involuntary Insolvency Proceeding is commenced or filed against
a Fund, or any writ, judgment, warrant of attachment, execution or similar
process is issued or levied against a substantial part of its assets, and
any such proceeding or petition shall not be dismissed, or such writ,
judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded within sixty (60) days after
commencement, filing or levy; (ii) a Fund admits the material allegations
of a petition against it in any Insolvency Proceeding, or an order for
relief (or similar order under non-U.S. law) is ordered in any Insolvency
Proceeding; or (iii) it acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession (or
agent therefor) or other similar Person for itself or a substantial portion
of its property or business.
(g) A Fund shall default in the performance of its agreement under Section
6.4, 6.7, 6.11 or 6.12.
(h) A Fund shall default in the performance of its other agreements herein
set forth (and not constituting an Event of Default under any of the other
subsections of this Section 7.1), and such default shall continue for
thirty (30) days (or three (3) Business Days in the case of the agreement
contained in the last sentence of the definition of "Total Assets") after
notice thereof to such Fund from the Agent.
(i) Any representation or warranty made by a Fund herein, or in any
schedule, statement, report, notice, certificate or other writing furnished
by it on or as of the date as of which the facts set forth therein are
stated or certified, is untrue or misleading in any material respect when
made or deemed made or any certification made or deemed made by it to the
Banks is untrue or misleading in any material respect on or as of the date
made or deemed made.
(j) There shall be entered against a Fund one or more judgments or decrees
that, when taken together, will exceed the lesser of five percent (5%) of
such Fund's Net Asset Value and $5,000,000, excluding those judgments or
decrees (i) that shall have been stayed or discharged less than thirty (30)
calendar days from the entry thereof and (ii) those judgments and decrees
for and to the extent that such Fund is insured and with respect to which
the insurer has assumed responsibility in writing or for and to the extent
that such Fund is otherwise indemnified if the terms of such
indemnification and the Person providing such indemnification are
satisfactory to the Majority Banks.
(k) The Majority Banks shall have reasonably determined in good faith that
a Material Adverse Change as to a Fund has occurred.
(l) A Fund shall no longer be in compliance with all material provisions of
the Act after giving effect to all notice, cure and contest periods
thereunder.
(m) Colonial Management Associates, Inc. or one of its Affiliates shall
cease to be the Adviser or administrator of a Fund or such Fund is in
breach of the covenant set forth in Section 6.22.
(n) A Fund shall violate or take any action that would result in a
violation of any of its investment restrictions or fundamental investment
policies as from time to time in effect, except for violations or the
taking of such actions that could not reasonably be expected to result in a
Material Adverse Change.
(o) There occurs a Change in Control of a Fund's Adviser.
7.2. Remedies. If any Event of Default described in Section 7.1 shall have
occurred and be continuing, the Agent, upon the direction of the Majority
Lenders, shall declare the Commitments to be terminated with respect to the
applicable Fund and such Fund's obligations under its Notes to be due and
payable, whereupon such Commitments shall immediately terminate with respect to
such Fund and such Fund's Notes shall become immediately due and payable, all
without advance notice of any kind (except that if an event described in Section
7.1(e) or Section 7.1(f) occurs, the Commitments shall immediately terminate
with respect to such Fund and the obligations under the Notes with respect to
such Fund shall become immediately due and payable without declaration or
advance notice of any kind). The Agent shall promptly advise such Fund of any
such declaration, but failure to do so shall not impair the effect of such
declaration. If an Event of Default shall have occurred, the Agent may exercise,
on behalf of itself and the Banks, all rights and remedies available to it and
the Banks against such Fund under the Credit Documents or applicable law.
ARTICLE VIII
THE AGENT
8.1. Appointment and Authorization. Each Bank hereby irrevocably appoints,
designates and authorizes the Agent (subject to Section 8.9) to take such action
on its behalf under the provisions of this Agreement and each other Credit
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Credit Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Credit Document, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall the Agent have or be deemed
to have any fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Credit Document or otherwise exist against the
Agent.
8.2. Delegation of Duties. The Agent may execute any of its duties under this
Agreement or any other Credit Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
8.3. Liability of Agent. None of the Agent-Related Persons shall (i) be liable
for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Credit Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct)
or (ii) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by a Trust or Fund or any officer or
agent thereof contained in this Agreement or in any other Credit Document, or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or any
other Credit Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document, or
for any failure of a Trust or Fund or any other party to any Credit Document to
perform its obligations hereunder or thereunder. No Agent-Related Person shall
be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in or conditions of
this Agreement or any other Credit Document or to inspect the properties, books
or records of a Trust or Fund.
8.4. Reliance by Agent. (a) The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement, or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including counsel to the
Funds), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Credit Document unless it shall first receive such
advice or concurrence of the Majority Banks as it deems appropriate, and if it
so requests, it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Credit Document in accordance with a request or consent of the
Majority Banks and such request, and any action taken or failure to act pursuant
thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.1, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted, or be satisfied with each
document or other matter either sent by the Agent to such Bank for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to,
approved by, acceptable or satisfactory to the Bank.
8.5. Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the Agent for the
account of the Banks, unless the Agent shall have received written notice from a
Bank or a Fund referring to this Agreement, describing such Default and stating
that such notice is a "notice of default". The Agent will notify the Banks of
its receipt of any such notice. The Agent shall take such action with respect to
such Default as may be requested by the Majority Banks in accordance with
Article VII; provided, however, that unless and until the Agent has received any
such request, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as it shall deem
advisable or in the best interest of the Banks.
8.6. Credit Decision. Each Bank acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it and that no act by the
Agent hereinafter taken, including any review of the affairs of the Funds, shall
be deemed to constitute any representation or warranty by any Agent-Related
Person to any Bank. Each Bank represents to the Agent that it has, independently
and without reliance upon any Agent-Related Person and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition, and creditworthiness of the Funds, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Funds
hereunder. Each Bank also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Documents and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition, and creditworthiness of the Funds.
Except for notices, reports and other documents expressly herein required to be
furnished to the Banks by the Agent, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition, or creditworthiness of the Funds which may come into the possession
of any of the Agent-Related Persons.
8.7. Indemnification of Agent. Whether or not the transactions contemplated
hereby are consummated, the Banks shall indemnify upon demand the Agent-Related
Persons (to the extent not reimbursed by or on behalf of the Funds and without
limiting the obligation of the Funds to do so), pro rata, from and against any
and all Indemnified Liabilities; provided, however, that no Bank shall be liable
for the payment to the Agent-Related Persons of any portion of such Indemnified
Liabilities resulting solely from such Person's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank shall reimburse the
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Credit Document, or any document contemplated by or referred to
herein, to the extent that the Agent is not reimbursed for such expenses by or
on behalf of the Funds. The undertaking in this Section shall survive the
payment of all Obligations hereunder and the resignation or replacement of the
Agent.
8.8. Agent in Individual Capacity. BofA and its Affiliates may make loans to,
issue letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with the Funds and their Affiliates as
though BofA were not the Agent hereunder and without notice to or consent of the
Banks. The Banks acknowledge that, pursuant to such activities, BofA or its
Affiliates may receive information regarding the Funds or their Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Funds) and acknowledge that the Agent shall be under no obligation
to provide such information to them. With respect to its Loans, BofA shall have
the same rights and powers under this Agreement as any other Bank and may
exercise the same as though it were not the Agent, and the terms "Bank" and
"Banks" include BofA in its individual capacity.
8.9. Successor Agent. The Agent may, and at the request of the Majority Banks
shall, resign as Agent upon thirty (30) days' notice to the Banks. If the Agent
resigns under this Agreement, the Majority Banks shall appoint from among the
Banks a successor agent for the Banks, which successor agent shall be subject to
approval by the Funds. If no successor agent is appointed prior to the effective
date of the resignation of the Agent, the Agent may appoint, after consulting
with the Banks and the Funds, a successor agent from among the Banks. Upon the
acceptance of its appointment as successor agent hereunder, such successor agent
shall succeed to all the rights, powers and duties of the retiring Agent and the
term "Agent" shall mean such successor agent, and the retiring Agent's
appointment, powers and duties as Agent shall be terminated. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article VIII and
Sections 9.4 and 9.5 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement. If no
successor agent has accepted appointment as Agent by the date which is thirty
(30) days following a retiring Agent's notice of resignation, the retiring
Agent's resignation shall nevertheless thereupon become effective, and the Banks
shall perform all of the duties of the Agent hereunder until such time, if any,
as the Majority Banks appoint a successor agent as provided for above.
8.10. Withholding Tax.(a) If any Bank is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Bank claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code, such
Bank agrees with and in favor of the Agent to deliver to the Agent:
(i) if such Bank claims an exemption from, or a reduction of, withholding
tax under a United States tax treaty, properly completed IRS Forms 1001 and
W-8 before the payment of any interest in the first calendar year and
before the payment of any interest in each third succeeding calendar year
during which interest may be paid under this Agreement;
(ii) if such Bank claims that interest paid under this Agreement is exempt
from United States withholding tax because it is effectively connected with
a United States trade or business of such Bank, two properly completed and
executed copies of IRS Form 4224 before the payment of any interest is due
in the first taxable year of such Bank and in each succeeding taxable year
of such Bank during which interest may be paid under this Agreement, and
IRS Form W-9; and
(iii) such other form or forms as may be required under the Code or other
laws of the United States as a condition to exemption from, or reduction
of, United States withholding tax.
Such Bank agrees to promptly notify the Agent of any change in circumstances
that would modify or render invalid any claimed exemption or reduction.
(b) If any Bank claims exemption from or reduction of withholding tax under a
United States tax treaty by providing IRS Form 1001 and such Bank sells,
assigns, grants a participation in or otherwise transfers all or part of the
Obligations of a Fund to such Bank, such Bank agrees to notify the Agent of the
percentage amount in which it is no longer the beneficial owner of Obligations
of such Fund to such Bank. To the extent of such percentage amount, the Agent
will treat such Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States withholding tax by filing
IRS Form 4224 with the Agent sells, assigns, grants a participation in or
otherwise transfers all or part of the Obligations of a Fund to such Bank, such
Bank agrees to undertake sole responsibility for complying with the withholding
tax requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable withholding tax,
the Agent may withhold from any interest payment to such Bank an amount
equivalent to the applicable withholding tax after taking into account such
reduction. If the forms or other documentation required by subsection (a) of
this Section are not delivered to the Agent, then the Agent may withhold from
any interest payment to such Bank not providing such forms or other
documentation an amount equivalent to the applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the United States or other
jurisdiction asserts a claim that the Agent did not properly withhold tax from
amounts paid to or for the account of any Bank (because the appropriate form was
not delivered, was not properly executed, or because such Bank failed to notify
the Agent of a change in circumstances which rendered the exemption from, or
reduction of, withholding tax ineffective, or for any other reason), such Bank
shall indemnify the Agent fully for all amounts paid, directly or indirectly, by
the Agent as tax or otherwise, including penalties and interest, and including
any taxes imposed by any jurisdiction on the amounts payable to the Agent under
this Section, together with all costs and expenses (including Attorney Costs).
The obligation of the Banks under this subsection shall survive the payment of
all Obligations and the resignation or replacement of the Agent.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1. Amendments and Waivers. No amendment or waiver of any provision of this
Agreement or any other Credit Document, and no consent with respect to any
departure by any Trust or Fund therefrom, shall be effective unless the same
shall be in writing and signed by the Majority Banks (or by the Agent at the
written request of the Majority Banks) and the Funds and acknowledged by the
Agent, and then any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no such waiver, amendment, or consent shall, unless in writing and
signed by all the Banks and the Funds and acknowledged by the Agent, do any of
the following:
(a) increase or extend the Commitments of any Bank (or reinstate any
Commitment(s) terminated pursuant to Section 7.1);
(b) postpone or delay any date fixed by this Agreement or any other Credit
Document for any payment of principal, interest, fees or other amounts due
to the Banks (or any of them) hereunder or under any other Credit Document;
(c) reduce the principal of, or the rate of interest specified herein on,
any Loan, or (subject to clause (ii) below) any fees or other amounts
payable hereunder or under any other Credit Document;
(d) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which is required for the Banks or any of
them to take any action hereunder; or
(e) amend this Section 9.1, Section 2.13, Section 6.12 or any provision
herein providing for consent or other action by all Banks;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Majority Banks or all the
Banks, as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Credit Document and (ii) the Fee Letter may be amended,
or rights or privileges thereunder waived, in a writing executed by the parties
thereto.
9.2 Notices. (a) All notices, requests and other communications shall be in
writing (including, unless the context expressly otherwise provides, by
facsimile transmission; provided that any matter transmitted by any Fund by
facsimile (i) shall be immediately confirmed by a telephone call to the
recipient at the number specified on Schedule III and (ii) shall be followed
promptly by delivery of a hard copy original thereof) and mailed, faxed or
delivered to the address or facsimile number specified for notices on Schedule
III, or, as directed to the Funds or the Agent, to such other address as shall
be designated by such party in a written notice to the other parties, and as
directed to any other party, at such other address as shall be designated by
such party in a written notice to the Funds and the Agent.
(b) All such notices, requests and communications shall, when transmitted by
overnight delivery or faxed, be effective when delivered for overnight
(next-day) delivery or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date deposited
into the U.S. mail, or if delivered, upon delivery; provided that notices
pursuant to Article II or VIII shall not be effective until actually received by
the Agent.
(c) Any agreement of the Agent and the Banks herein to receive certain notices
by telephone or facsimile is solely for the convenience and at the request of
the Funds. The Agent and the Banks shall be entitled to rely on the authority of
any Person purporting to be a Person authorized by a Fund to give such notice,
and the Agent and the Banks shall not have any liability to such Fund or other
Person on account of any action taken or not taken by the Agent or the Banks in
reliance upon such telephonic or facsimile notice. The obligation of the Funds
to repay the Loans shall not be affected in any way or to any extent by any
failure by the Agent and the Banks to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Agent and the Banks of a
confirmation which is at variance with the terms understood by the Agent and the
Banks to be contained in the telephonic or facsimile notice.
9.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Agent or any Bank, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
9.4. Costs and Expenses. Subject to the allocation provisions of Section 2.14,
the Funds shall:
(a) whether or not the transactions contemplated hereby are consummated, pay or
reimburse BofA (including in its capacity as Agent) within five (5) Business
Days after demand for all reasonable costs and expenses incurred by BofA
(including in its capacity as Agent) in connection with the development,
preparation, delivery, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Credit Document and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including reasonable Attorney
Costs incurred by BofA (including in its capacity as Agent) with respect
thereto; provided, however, notwithstanding anything to the contrary in the
foregoing, the responsibility of a Fund to reimburse BofA for Attorney Costs in
connection with the development, preparation, delivery and execution of this
Agreement and such other documents and the consummation of such transactions
shall be limited to the reasonable fees and disbursements of outside counsel to
BofA; and
(b) pay or reimburse the Agent, the Arranger and each Bank within five (5)
Business Days after demand for all costs and expenses (including Attorney Costs)
incurred by them in connection with the enforcement, attempted enforcement or
preservation of any rights or remedies under this Agreement or any other Credit
Document during the existence of an Event of Default or after acceleration of
the Loans (including in connection with any "workout" or restructuring regarding
the Loans and including in any Insolvency Proceeding or appellate proceeding).
9.5. Funds Indemnification. (a) Whether or not the transactions contemplated
hereby are consummated, the Funds shall indemnify and hold the Agent-Related
Persons, and each Bank and each of its respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an "Indemnified
Person"), harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, charges, expenses
and disbursements (including Attorney Costs) of any kind or nature whatsoever
which may at any time (including at any time following repayment of the Loans
and the termination, resignation or replacement of the Agent or replacement of
any Bank) be imposed on, incurred by or asserted against any such Person in any
way relating to or arising out of this Agreement or any document contemplated by
or referred to herein, or the transactions contemplated hereby, or any action
taken or omitted by any such Person under or in connection with any of the
foregoing, including with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to or
arising out of this Agreement or the Loans or the use of the proceeds thereof,
whether or not any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided that no Fund shall have
an obligation hereunder to any Indemnified Person with respect to Indemnified
Liabilities resulting solely from the gross negligence or willful misconduct of
such Indemnified Person. The agreements in this Section shall survive payment of
all other Obligations.
(b) Promptly after receipt by an Indemnified Person under subsection (a) above
of notice of the commencement of any action, such Indemnified Person shall, if a
claim in respect thereof is to be made against a Fund under such subsection,
notify such Fund in writing of the commencement thereof, but the omission so to
notify such Fund shall not relieve it from any liability which it may have to
any Indemnified Person otherwise than under such subsection. In case any such
action shall be brought against any Indemnified Person and it shall notify the
relevant Fund of the commencement thereof, the indemnifying Fund shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other Fund similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such Indemnified Person (who shall not,
except with the consent of the Indemnified Person, be counsel to the
indemnifying Fund(s)), and after notice from the indemnifying Fund(s) to such
Indemnified Person of its election so to assume the defense thereof; provided
that in no event shall any settlement or compromise of any such claims, actions
or demands be made without the consent of the Indemnified Person, the consent of
which shall not be unreasonably withheld.
(c) The agreements in this Section 9.5 shall survive payment of all other
Obligations.
9.6.Payments Set Aside. To the extent that a Fund makes a payment to the Agent
or the Banks, or the Agent or the Banks exercise their right of set-off, and
such payment or the proceeds of such set-off or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the Agent or
such Bank in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any Insolvency Proceeding or otherwise, then (a) to
the extent of such recovery, the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such set-off had not occurred and (b) each
Bank severally agrees to pay to the Agent upon demand its pro rata share of any
amount so recovered from or repaid by the Agent.
9.7. Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and shall inure to the benefit of each Fund, the Agent and the
Banks and their respective successors and assigns, except that no Fund may
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of the Banks. One or more additional Funds may become
party hereto upon the written approval of all the Banks.
(b) The Loans are being made by the Banks in the ordinary course of
their business and not with a view toward distribution, it being understood that
each Bank may sell participations and assignments in its Commitments and the
Loans as provided herein. Any Bank may at any time assign, subject to the
relevant Fund's consent, which consent shall not be unreasonably withheld, to
one or more banks (as defined in Section 2(a)(5) of the Act) not an affiliate
(as defined in the Act) of any Trust or Fund or Colonial Management Associates,
Inc. (each an "Assignee") all, or a proportionate part of all, of its rights
under this Agreement and such Fund's Notes. Any Bank may at any time grant to
one or more banks (as defined in Section 2(a)(5) of the Act) not an affiliate
(as defined in the Act) of any Trust or Fund or Colonial Management Associates,
Inc. (each a "Participant") participating interests in its Commitments or any or
all of its Loans. In the event of any such grant by a Bank of a participating
interest to a Participant, whether or not upon notice to the relevant Fund, such
Bank shall remain responsible for the performance of its obligations hereunder,
and the relevant Fund shall continue to deal solely and directly with such Bank
in connection with the Bank's rights and obligations under this Agreement. Any
agreement pursuant to which such Bank may grant such a participating interest
shall provide that the Bank shall retain the sole right and responsibility to
enforce the obligations of the relevant Fund hereunder, including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such participation agreement may
provide that such Bank will not agree to any modification, amendment or waiver
of this Agreement (i) which increases or decreases the Commitments of the Bank,
(ii) reduces the principal of or rate of interest on any Loan or fees hereunder
or (iii) postpones the date fixed for any payment of principal of or interest on
any Loan or any fees hereunder without the consent of the Participant. The
relevant Fund agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article III hereof with
respect to its participating interest.
(c) Any Bank may at any time assign all or any portion of its rights
under this Agreement and the Notes to a Federal Reserve Bank. No such assignment
shall release such Bank from its obligations hereunder.
(d) No Assignee, Participant or other transferee of a Bank's rights
shall be entitled to receive any greater payment under Section 3.1 and Section
3.3 hereof than such Bank would have been entitled to receive with respect to
the rights transferred, unless such transfer is made with the relevant Trust's
or Fund's prior written consent or at a time when the circumstances giving rise
to such greater payment did not exist.
9.8. Confidentiality. Each Bank agrees to take and to cause its Affiliates to
take normal and reasonable precautions and exercise due care to maintain the
confidentiality of all written information identified as "confidential" or
"secret" by a Fund and provided to it by or on behalf of the Fund, or by the
Agent on such Fund's behalf, under this Agreement or any other Credit Document,
and neither it nor any of its Affiliates shall use any such information other
than in connection with or in enforcement of this Agreement and the other Credit
Documents, except to the extent such information (i) was or becomes generally
available to the public other than as a result of disclosure by the Bank or (ii)
was or becomes available on a non-confidential basis from a source other than
the Fund, provided that such source is not bound by a confidentiality agreement
with the Fund known to the Bank; provided, however, that any Bank may disclose
such information (A) at the request or pursuant to any requirement of any
Governmental Authority to which the Bank is subject or in connection with an
examination of such Bank by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the Agent, any
Bank or their respective Affiliates may be party; (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under any
other Credit Document; (F) to such Bank's independent auditors and other
professional advisors; (G) to any Participant or Assignee, actual or potential,
provided that such Person agrees in writing to keep such information
confidential to the same extent as required by the Banks hereunder; (H) as to
any Bank or its Affiliate, as expressly permitted under the terms of any other
document or agreement regarding confidentiality to which such Fund is party or
is deemed party with such Bank or such Affiliate; and (I) to its Affiliates.
9.9. Set-off. In addition to any rights and remedies of the Banks provided by
law, if, as to a Fund, an Event of Default exists and is continuing or the Loans
have been accelerated, each Bank is authorized at any time and from time to
time, without prior notice to the relevant Fund (any such notice being waived by
such Fund to the fullest extent permitted by law), to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such Bank to or for
the credit or the account of the Fund against any and all Obligations owing to
such Bank, now or hereafter existing, irrespective of whether or not the Agent
or such Bank shall have made demand under this Agreement or any Credit Document
and although such Obligations may be contingent or unmatured provided that any
such appropriation and application shall be subject to the provisions of Section
2.13. Each Bank agrees promptly to notify the affected Fund and the Agent after
any such set-off and application made by such Bank; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application.
9.10. Notification of Addresses, Lending Offices, etc. Each Bank shall notify
the Agent in writing of any changes in the address to which notices to the Bank
should be directed, of addresses of any Lending Office, of payment instructions
in respect of all payments to be made to it hereunder and of such other
administrative information as the Agent shall reasonably request.
9.11. Counterparts. This Agreement may be executed in any number of separate
counterparts, each of which, when so executed, shall be deemed an original, and
all of said counterparts taken together shall be deemed to constitute but one
and the same instrument.
9.12. Survival. The obligations of the Funds under Sections 2.9, 9.4 and 9.5,
and the obligations of the Banks under Section 8.7, shall in each case survive
any termination of this Agreement, the payment in full of all Obligations and
the termination of all Commitments. The representations and warranties made by
the Trusts and Funds in this Agreement and in each other Credit Document shall
survive the execution and delivery of this Agreement and each such other Credit
Document.
9.13. Disclaimer. None of the shareholders, trustees, officers, employees and
other agents of any Trust or Fund shall be personally bound by or liable for any
indebtedness, liability or obligation hereunder or under the Notes, nor shall
resort be had to their private property for the satisfaction of any obligation
or claim hereunder. Nothing in this Section 9.13 shall affect the Bank's rights
against Adviser Persons as provided in Section 1.5.
9.14. Severability. The illegality or unenforceability of any provision of this
Agreement or any instrument or agreement required hereunder shall not in any way
affect or impair the legality or enforceability of the remaining provisions of
this Agreement or any instrument or agreement required hereunder.
9.15. No Third Parties Benefited. This Agreement is made and entered into for
the sole protection and legal benefit of the Trusts and Funds, the Banks, the
Agent and the Agent-Related Persons, and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Credit Documents.
9.16. Governing Law and Jurisdiction.(a) THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS;
PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF ILLINOIS OR OF THE
UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH TRUST AND EACH OF THE AGENT AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH TRUST AND EACH OF THE AGENT AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH TRUST, THE AGENT AND THE
BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY ILLINOIS LAW.
9.17. Waiver of Jury Trial. THE TRUSTS, THE BANKS AND THE AGENT EACH WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS, OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE TRUSTS, THE BANKS AND THE
AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR THE OTHER CREDIT DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS.
9.18. Acknowledgments. The Funds, the Banks and the Agent acknowledge that (i)
the name of Colonial Tax Managed Growth Fund has been changed to Xxxxx Xxx
Advisor Tax Managed Growth Fund; (ii) the name Colonial Newport Japan Fund has
been changed to Newport Japan Opportunities Fund; (iii) the name Colonial
Newport Tiger Fund has been changed to Newport Tiger Fund; (iv) the name
Colonial Newport Tiger Cub Fund has been changed to Newport Tiger Cub Fund; (v)
the name Colonial U.S. Stock Fund has been changed to Colonial U.S. Growth and
Income Fund; (vi) each Trust's name has been changed by replacing "Colonial"
with "Liberty Funds"; (vii) they have consented to the change from a fundamental
investment policy of Colonial High Yield Securities Fund, Colonial Income Fund,
Colonial Short Duration U.S. Government Fund, Colonial Select Value Fund, The
Colonial Fund, Colonial Global Equity Fund, Colonial International Horizons
Fund, Colonial Tax Exempt Fund, Colonial High Yield Municipal Fund, Newport
Tiger Fund and Colonial Utilities Fund to a nonfundamental investment policy of
such Funds the policy imposing a 15% ceiling on investments in illiquid
securities; (viii) they have consented to the reclassification of Colonial
California Tax Exempt Fund as a non-diversified investment company; (ix) they
have consented to the combination of LFC Utilities Trust with Colonial Global
Utilities Fund with Colonial Global Utilities Fund being the surviving
organization in connection with elimination of the "master feeder" arrangements
between Colonial Global Utilities Fund and LFC Utilities Trust; (x) they have
consented to the change of the Funds' custodian to The Chase Manhattan Bank;
(xi) they have consented to the merger of Colonial International Fund for Growth
into Colonial International Horizons Fund; and (xii) they consent to the merger
of Newport Tiger Cub Fund into Newport Asia Pacific Fund.
9.19. Entire Agreement. This Agreement, together with the other Credit
Documents, embodies the entire agreement and understanding among the Trusts, the
Banks and the Agent and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
LIBERTY FUNDS TRUST I, ON BEHALF OF COLONIAL INCOME FUND, COLONIAL HIGH
YIELD SECURITIES FUND, COLONIAL STRATEGIC INCOME FUND AND XXXXX XXX ADVISOR
TAX MANAGED GROWTH FUND
By: /s/ Xxxxxxx Xxxxxx
Title: Treasurer & CFO
LIBERTY FUNDS TRUST II, ON BEHALF OF COLONIAL SHORT DURATION U.S.
GOVERNMENT FUND, NEWPORT GREATER CHINA FUND, NEWPORT JAPAN OPPORTUNITIES
FUND AND NEWPORT TIGER CUB FUND
By: /s/ Xxxxxxx Xxxxxx
Title: Treasurer & CFO
LIBERTY FUNDS TRUST III, ON BEHALF OF COLONIAL GLOBAL EQUITY FUND, COLONIAL
INTERNATIONAL HORIZONS FUND, COLONIAL SELECT VALUE FUND, THE COLONIAL FUND,
COLONIAL GLOBAL UTILITIES FUND, COLONIAL STRATEGIC BALANCED FUND, CRABBE
HUSON CONTRARIAN FUND, CRABBE HUSON CONTRARIAN INCOME FUND, CRABBE HUSON
SMALL CAP FUND, CRABBE HUSON MANAGED INCOME & EQUITY FUND, CRABBE HUSON
EQUITY FUND, CRABBE HUSON REAL ESTATE INVESTMENT FUND AND CRABBE HUSON
OREGON TAX-FREE FUND
By: /s/ Xxxxxxx Xxxxxx
Title: Treasurer & CFO
LIBERTY FUNDS TRUST IV, ON BEHALF OF COLONIAL INTERMEDIATE TAX EXEMPT FUND,
COLONIAL HIGH YIELD MUNICIPAL FUND, COLONIAL UTILITIES FUND, COLONIAL TAX
EXEMPT INSURED FUND AND COLONIAL TAX EXEMPT FUND
By: /s/ Xxxxxxx Xxxxxx
Title: Treasurer & CFO
LIBERTY FUNDS TRUST V, ON BEHALF OF COLONIAL CALIFORNIA TAX EXEMPT FUND,
COLONIAL CONNECTICUT TAX EXEMPT FUND, COLONIAL FLORIDA TAX EXEMPT FUND,
COLONIAL MASSACHUSETTS TAX EXEMPT FUND, COLONIAL MICHIGAN TAX EXEMPT FUND,
COLONIAL MINNESOTA TAX EXEMPT FUND, COLONIAL NEW YORK TAX EXEMPT FUND,
COLONIAL NORTH CAROLINA TAX EXEMPT FUND AND COLONIAL OHIO TAX EXEMPT FUND
By: /s/ Xxxxxxx Xxxxxx
Title: Treasurer & CFO
LIBERTY FUNDS TRUST VI, ON BEHALF OF COLONIAL SMALL CAP VALUE FUND,
COLONIAL U.S. GROWTH & INCOME FUND, COLONIAL VALUE FUND AND NEWPORT ASIA
PACIFIC FUND
By: /s/ Xxxxxxx Xxxxxx
Title: Treasurer & CFO
LIBERTY FUNDS TRUST VII, ON BEHALF OF NEWPORT TIGER FUND
By: /s/ Xxxxxxx Xxxxxx
Title: Treasurer & CFO
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: /s/ Xxxxxxxxx X. X. Xxxxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: /s/ Xxxxxxxxx X. X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxx X. Pile
Title: Assistant Vice President
MELLON BANK, N.A.
By: /s/ Xxxx X. Xxxxxx
Title: Vice President
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
DEFINITIONS
"Act" means the Investment Company Act of 1940.
"Adviser" means Colonial Management Associates, Inc. or one of its
Affiliates, as investment adviser, sub-adviser or administrator to a
Fund, together with any successor thereto permitted by Section 6.2(e)
hereof.
"Adviser Persons" is defined in Section 1.5.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract or
otherwise.
"Agent" is defined in the preamble and includes each other Person as
shall have subsequently been appointed as the successor Agent pursuant to
Section 8.9.
"Agent-Related Persons" means BofA and any successor agent arising
under Section 8.9, together with their respective Affiliates (including, in the
case of BofA, the Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set forth in
Schedule III in relation to the Agent or such other address as the Agent may
from time to time specify.
"Agreement" means this Credit Agreement, as it may be amended, modified
or supplemented from time to time.
"Allocation Notice" means a notice, substantially in the form of
Exhibit 2.14, furnished to the Agent by or on behalf of each Fund, setting
forth, as of the date of such notice, the manner of allocation of liability for
amounts that shall become due and payable by the Funds under the Credit
Documents other than principal and interest in respect of Loans. The allocation
of liability among the Funds as set forth in an Allocation Notice shall be
effective from the date of receipt thereof by the Agent until a later-dated
Allocation Notice is delivered to the Agent.
"Applicable Margin" means,
(i) with respect to Base Rate Loans, zero percent (0.0%);
(ii) with respect to Federal Funds Rate Loans, five tenths of
one percent (0.5%); and
(iii) with respect to Offshore Rate Loans, five tenths of one
percent (0.5%).
"Arranger" means NationsBanc Xxxxxxxxxx Securities LLC, as sole lead
arranger and sole book manager.
"Asset Coverage Ratio" means, with respect to any Fund, the ratio that
the Net Asset Value of such Fund, less the value of assets subject to Liens,
bears to the aggregate amount of Indebtedness of such Fund.
"Assignee" is defined in Section 9.7(b).
"Attorney Costs" means and includes any and all fees and disbursements
of any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"Authorized Officer" means, relative to any Fund, those of its officers
or agents whose signatures and incumbency shall have been certified to the Agent
and the Banks pursuant to Section 4.1(a).
"Banks" is defined in the preamble.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978.
"Base Rate" means, for any day, the rate of interest in effect for such
day as publicly announced from time to time by BofA in San Francisco,
California, as its "reference rate." The "reference rate" is a rate set by BofA
based upon various factors, including BofA's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above or below such announced rate.
Any change in the reference rate announced by BofA shall take effect at the
opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate, including a Swing Loan.
"BofA" is defined in the preamble.
"Borrowing" means a borrowing hereunder, other than a Swing Loan,
consisting of Loans of the same Type made to a Fund on the same day by the Banks
under Article II and, other than in the case of Base Rate Loans or Federal Funds
Rate Loans, having the same Interest Period.
"Borrowing Base" has the meaning set forth in Section 6.1(c).
"Borrowing Base Certificate" means a Borrowing Base Certificate as
defined in Section 6.1(c) and substantially in the form of Exhibit 6.1 attached
hereto.
"Borrowing Date" means any date on which a Borrowing occurs under
Section 2.3.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York City or San Francisco are authorized or
required by law to close and, if the applicable Business Day relates to any
Offshore Rate Loan, means such a day on which dealings are carried on in the
applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Change in Control" means any transaction or series of transactions
where (i) any "person" (as such term is used in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") as in effect on the date
hereof) becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act, as in effect on the date hereof), directly or indirectly, of
securities of another Person (the "Target") representing twenty percent (20%) or
more of the combined voting power of the Target's then-outstanding securities;
(ii) at any time less than a majority of the members of the Target's board of
directors shall be persons who were either nominated for election or were
elected by such board of directors; (iii) the Target's stockholders approve a
merger or consolidation of the Target with any other Person, other than a merger
or consolidation that would result in the voting securities of the Target
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least seventy-five percent (75%) of the combined voting
power of the voting securities of the Target or such surviving entity
outstanding immediately after such merger or consolidation; or (iv) the Target's
stockholders approve a plan of complete liquidation of the Target or an
agreement for the sale or disposition of all or substantially all of the
Target's assets.
"Closing Date" means April 29, 1996.
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, relative to any Bank, such Bank's obligation to make
Loans pursuant to Section 2.1.
"Commitment Amount" means, on any date, $200,000,000, as such amount may
be reduced from time to time pursuant to Section 2.5.
"Commitment Termination Date" means, with respect to any Fund, the
earliest to occur of:
a)
the Scheduled Commitment Termination Date;
(a) the date on which the Commitments terminate in accordance with the
provisions of this Agreement; and
(b) the date on which any Event of Default with respect to that Fund described
in Section 7.1(e) or Section 7.1(f) occurs.
Upon the occurrence of any event described in clause (b) or (c) above,
the Commitments shall terminate automatically and without further action.
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor, or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered; or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall, in the case of Guaranty Obligations, be deemed
equal to the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof,
and in the case of other Contingent Obligations, shall be equal to the maximum
reasonably anticipated liability in respect thereof.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
borrowing Fund, substantially in the form of Exhibit 2.4.
"Credit Documents" means this Agreement, any Notes, the Fee Letter and
all other documents delivered to the Agent or any Bank in connection herewith.
"Default" means any Event of Default or any condition, occurrence or
event that, with notice or lapse of time or both, would, unless cured or waived,
constitute an Event of Default.
"Dollar" and the symbol "$" mean the lawful money of the United States.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
"Event of Default" means any of the events described in Section 7.1.
"Exchange Act" has the meaning specified in the definition of "Change
in Control".
"Existing Agreement" has the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Federal Funds Rate" means, for any day, the rate as quoted by the
Federal Reserve Bank of New York and confirmed in the weekly statistical release
designated as H.15(519), or any successor publication, published by the Federal
Reserve Bank of New York (including any such successor, "H.15(519)") on the
preceding Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such preceding
Business Day, the rate for such day will be the arithmetic mean as determined by
the Agent of the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (New York City time) on that day by each of three
(3) leading brokers of Federal funds transactions in New York City selected by
the Agent.
"Federal Funds Rate Loan" means a Loan that bears interest based on the
Federal Funds Rate.
"Fee Letter" means the letter agreement referred to in Section 2.9.
"Financial Contracts" shall mean option contracts, futures contracts,
options on futures contracts, forward foreign currency exchange contracts,
options on foreign currencies, repurchase agreements, reverse repurchase
agreements, securities lending arrangements, short sale transactions, Swap
Contracts, when-issued securities and other permitted investments.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve (12) consecutive calendar
months ending on the last day of such twelve-month period; references to a
Fiscal Year with a number corresponding to any calendar year (e.g., the "1995
Fiscal Year") refer to the Fiscal Year ending on or before December 31 during
such calendar year.
"FRB" means the Board of Governors of the Federal Reserve System and any
Governmental Authority succeeding to any of its principal functions.
"Fund" means each series or class of shares of a Trust that constitutes
a "series" under the Act, that is a signatory to this Agreement or that becomes
a signatory to this Agreement following the approval of all the Banks.
"GAAP" means United States generally accepted accounting principles.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business on ordinary terms); (c)
all non-contingent reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including, without limitation, obligations so evidenced
incurred in connection with the acquisition of property, assets or businesses;
(e) all indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case with respect
to property acquired by the Person (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations as lessee under
leases that have been or should be, in accordance with GAAP, recorded as capital
leases; (g) all net obligations with respect to Swap Contracts; (h) all
indebtedness referred to in clauses (a) through (g) above secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including accounts
and contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; (i) all Guaranty
Obligations in respect of indebtedness or obligations of others of the kinds
referred to in clauses (a) through (g) above; (j) all Contingent Obligations;
and (k) all other items that, in accordance with GAAP, would be included as
liabilities on the liability side of the balance sheet of such Person as of the
date at which Indebtedness is to be determined.
"Indemnified Liabilities" is defined in Section 9.5.
"Indemnified Persons" is defined in Section 9.5.
"Insolvency Proceeding" means, with respect to any Person, (a) any case,
action or proceeding before any court or other Governmental Authority relating
to bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors or (b) any general assignment for
the benefit of creditors, composition, marshaling of assets for creditors, or
other similar arrangement in respect of its creditors generally or any
substantial portion of its creditors, undertaken under U.S.
federal, state or foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Loan other than a Base Rate
Loan or Federal Funds Rate Loan, the last day of each Interest Period applicable
to such Loan and, as to any Base Rate Loan or Federal Funds Rate Loan, the last
Business Day of each calendar quarter.
"Interest Period" means, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the Conversion/Continuation
Date on which the Loan is converted into or continued as an Offshore Rate Loan
and ending on the date one or two weeks thereafter as selected by a Fund in its
Loan Request or Conversion/Continuation Notice,
provided that:
(1) if any Interest Period would otherwise end on a day that is not a Business
Day, that Interest Period shall be extended to the following Business Day
unless, in the case of an Offshore Rate Loan, the result of such extension would
be to carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the preceding Business Day; and
(1) no Interest Period for any Loan shall extend beyond the Commitment
Termination Date.
"IRS" means the Internal Revenue Service and any Governmental Authority
succeeding to any of its principal functions under the Code.
"Lending Office" means, as to any Bank, the office or offices of such
Bank specified as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office", as the case may be, on such Bank's signature page hereto or, in
the case of an Assignee Bank, in the Bank Assignment Agreement, or such other
office or offices as such Bank may from time to time notify to the Trusts and
the Agent.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, segregated asset
arrangement established in connection with reverse repurchase transactions,
encumbrance, lien (statutory or other) or preferential arrangement of any kind
or nature whatsoever in respect of any property (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease, any financing lease
having substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the asset to which such
lien relates as debtor, under the Uniform Commercial Code or any comparable law)
and any contingent or other agreement to provide any of the foregoing, but not
including the interest of a lessor under an operating lease.
"Loan" means an extension of credit by a Bank to a Fund under Article II
and may be a Base Rate Loan (including a Swing Loan), Federal Funds Rate Loan or
an Offshore Rate Loan (each, a "Type" of Loan).
"Loan Request" means a request for a Loan given by a Fund to the Agent
substantially in the form of Exhibit 2.3.
"Majority Banks" means, at any time, at least two (2) Banks then holding
at least sixty-six and two-thirds percent (66-2/3%) of the then-aggregate unpaid
principal amount of the Loans or, if no such principal amount is then
outstanding, at least two (2) Banks then having at least sixty-six and
two-thirds percent (66-2/3%) of the Commitments.
"Material Adverse Change" means any change that is material and adverse
to (x) the condition (financial or otherwise), business or prospects of a Fund,
provided any change occurring after the most recent Borrowing Date resulting
from a decrease in the Net Asset Value of a Fund shall not be deemed a Material
Adverse Change as long as such Fund's Net Asset Value has not decreased by more
than twenty-five percent (25%) per share since the Borrowing Date, or (y) the
ability of a Fund to duly and punctually pay and perform all or any of its
Obligations.
"Net Asset Value" means, at any date, Total Assets less Total
Liabilities.
"New Borrower Parties" is defined in the recitals.
"Non-United States Person" means any corporation, partnership,
association or trust that is organized under the laws of a jurisdiction other
than the United States of America or one of its states.
"Note" means the promissory note of a Fund, substantially in the form
set forth as Exhibit 2.2.
"Obligations" means all obligations (monetary or otherwise) of a Fund to
the Banks and the Agent under the Credit Documents and the Fee Letter, including
(a) all obligations to make payments to the Banks of, and in respect of the
principal amount of and interest on, any Loan and (b) all obligations of a Fund
to the Banks and the Agent in respect of fees, costs, expenses and
indemnification under Sections 9.4 and 9.5.
"Offshore Rate" means, for any Interest Period, with respect to Offshore
Rate Loans comprising part of the same Borrowing, the rate of interest per annum
(rounded upward to the next 1/16th of 1%) determined by the Agent as follows:
Offshore Rate = IBOR
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means, for any day for any
Interest Period, the maximum reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day (whether
or not applicable to any Bank) under regulations issued from time to
time by the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to
as "Eurocurrency liabilities"); and
"IBOR" means the rate of interest per annum determined by the
Agent as the rate at which Dollar deposits in the approximate amount of
BofA's Offshore Rate Loan for such Interest Period would be offered by
BofA's Grand Cayman Branch, Grand Cayman B.W.I. (or such other office as
may be designated for such purpose by BofA), to major banks in the
offshore Dollar interbank market at their request at approximately 9:00
a.m. (San Francisco time) one (1) Business Day prior to the commencement
of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears interest based on the
Offshore Rate.
"Organization Documents" means, for any Trust, the Trust Agreement, the
bylaws, any certificate of determination or instrument relating to the rights of
preferred shareholders of such Trust and all applicable resolutions of the board
of trustees (or any committee thereof) of such Trust.
"Original Borrower Parties" is defined in the recitals.
"Other Taxes" means any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies that arise from
any payment made hereunder or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement or any other Credit Documents.
"Participant" is defined in Section 9.7(b).
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"Plan" means any "pension plan" or "welfare benefit plan" as such terms
are defined in ERISA.
"Pro Rata Share" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of such Bank's Commitment divided by the combined Commitments of all Banks,
as set forth on Schedule II, as such amount may be adjusted from time to time as
a result of an assignment made by such Bank pursuant to Section 9.7 or
otherwise.
"Refinancing" means the refinancing of the Agreement as contemplated by
this amendment and restatement of the Existing Agreement.
"Refinancing Date" has the meaning assigned to such term in Section 4.1.
"Regulation U" means the FRB's Regulation U.
"Related Party" means, with respect to a Fund and for purposes of
Section 6.16 only, any Person (i) that directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, such Fund, (ii) that beneficially owns or holds five percent (5%) or more
of the equity interest of such Fund or (iii) five percent (5%) or more of the
equity interest of which is beneficially owned or held by such Fund. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Replacement Bank" is defined in Section 3.7.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation, or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Scheduled Commitment Termination Date" means May 15, 2000; provided
that the Scheduled Commitment Termination Date may be extended for successive
364-day periods upon the written request of the Trusts therefor received by the
Agent and the Banks not less than forty-five (45) days prior to the
then-existing Scheduled Commitment Termination Date, and the receipt by the
Trusts within twenty (20) days of such existing Scheduled Commitment Termination
Date of the agreement by the Agent and the Banks (which shall be entirely at the
sole discretion of the Agent and each Bank, none of whom has any obligation
regarding such extension) to such requested extension. No agreement regarding
any particular extension shall create any obligation of the Agent or any Bank
regarding any subsequent extension.
"Subsidiary" means, with respect to any Person, any corporation of which
more than fifty percent (50%) of the outstanding capital stock having ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"Surety Instruments" means all letters of credit (including standby and
commercial), bankers' acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"Swap Contract" means any agreement (including any master agreement and
any agreement, whether or not in writing, relating to any single transaction)
that is an interest rate swap agreement, basis swap, forward rate agreement,
commodity swap, commodity option, equity or equity index swap or option, bond
option, interest rate option, forward foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency rate swap
agreement, swaption, currency option or any other similar agreement (including
any option to enter into any of the foregoing).
"Swing Loan" means a Loan made by BofA in accordance with the terms of
Section 2.15 of this Agreement.
"Target" has the meaning specified in the definition of "Change in
Control".
"Taxes" means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Agent, such taxes (including income
taxes or franchise taxes) as are imposed on or measured by each Bank's net
income by the jurisdiction (or any political subdivision thereof) under the laws
of which such Bank or the Agent, as the case may be, is organized or maintains a
lending office.
"Total Assets" means, with respect to a Fund as of any date, the
aggregate amount of all items that would be set forth as assets on a balance
sheet of such Fund on such date prepared in accordance with GAAP. The assets of
a Fund shall be valued in accordance with the Act, the rules and regulations
under the Act, and the valuation procedures set forth in its most recent
statement of additional information. Upon the written request of the Agent, a
Fund shall promptly furnish all such information as the Agent shall reasonably
request relating to the value of any portfolio security or other asset of such
Fund or the assignment of values thereto by such Fund or any other Person.
"Total Liabilities" means, with respect to a Fund as of any date, the
aggregate amount of all items that would be set forth as liabilities on a
balance sheet of such Fund on such date prepared in accordance with GAAP.
"Trust" has the meaning assigned to such term in the preamble.
"Trust Agreement" means, with respect to a Trust, such Trust's Agreement
and Declaration of Trust or similar instrument, as amended from time to time.
"Type" has the meaning specified in the definition of "Loan."
"United States" or "U.S." means the United States of America, its fifty
(50) states and the District of Columbia.
SCHEDULE II
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
Bank of America National Trust
and Savings Association $50,000,000 25%
Fleet National Bank $50,000,000 25%
Mellon Bank, N.A. $50,000,000 25%
State Street Bank and Trust Company $50,000,000 25%
TOTAL $200,000,000 100%
SCHEDULE III
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
THE FUNDS
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Fund Accounting
with a copy to:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Legal
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
Bank of America National Trust
and Savings Association
Agency Administrative Services
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Agency Administrative Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Payment Details:
Account No: 1233-15041
ABA No: 0000-0000-0
Reference: Colonial Management Associates
Attention: Xxxx Xxxxx
Agency Administrative Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
Domestic and Offshore Lending Office:
0000 Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Notices (other than Loan Requests and Notices of Conversion/Continuation):
Bank of America National Trust
and Savings Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FLEET NATIONAL BANK
Domestic and Offshore Lending Office:
One Federal Street
Mail Code MAOF0210
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx XxXxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Loan Requests and Notices of Conversion/Continuation):
Fleet National Bank
Financial Institutions
Mail Stop CT MO 0250
000 Xxxx Xxxxxx
Xxxxxxxx Xxxxxxxxxxx 00000
Attention: Xxxx X. Pile
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
MELLON BANK, N.A.
Domestic and Offshore Lending Office:
One Mellon Bank Center, Room 305
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx XxXxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Loan Requests and Notices of Conversion/Continuation):
Mellon Bank, N.A.
One Mellon Bank Center
Room 305
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx XxXxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
STATE STREET BANK AND TRUST COMPANY
Domestic and Offshore Lending Office:
State Street Bank and Trust Company
Lafayette Corporate Center
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Loan Requests and Notices of Conversion/Continuation):
Street address:
State Street Bank and Trust Company
Lafayette Corporate Center
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxx
Mailing address:
State Street Bank and Trust Company
X.X. Xxx 000
Xxxxxx, XX 00000-0000
Attention: Xxx Xxxxxx
EXHIBIT 2.2
Non-Negotiable
PROMISSORY NOTE
$__,000,000.00 _________, ________: as of ________ __, 199_
FOR VALUE RECEIVED, the undersigned Fund ("Fund"), promises to pay to
_____________________ (the "Bank"), as set forth in the Credit Agreement
hereinafter referred to and on the Commitment Termination Date (as defined in
the Credit Agreement), the principal sum of ____________________ AND 00/100
DOLLARS ($__,000,000.00) or, if less, the then-aggregate unpaid principal amount
of Base Rate Loans, Federal Funds Rate Loans and Offshore Rate Loans (as such
terms are defined in the Credit Agreement) as has been borrowed by the Fund
under the Credit Agreement. The Fund may borrow, repay and reborrow hereunder in
accordance with the provisions of the Credit Agreement. All Base Rate Loans,
Federal Funds Rate Loans and Offshore Rate Loans and all payments of principal
shall be recorded by the holder in its records.
Anything in this Note to the contrary notwithstanding, the Fund shall
be liable hereunder only for Base Rate Loans, Federal Funds Rate Loans and
Offshore Rate Loans borrowed by the Fund under the Credit Agreement and other
obligations with respect thereto. The sole source of repayment of the principal
of and interest on each Loan hereunder and other obligations with respect
thereto made with respect to the Fund shall be the revenues and assets of such
Fund and not from any other asset of the Trust or any other Fund as a series of
the Trust.
The Fund further promises to pay to the order of the Bank interest on
the aggregate unpaid principal amount hereof from time to time outstanding from
the date hereof until paid in full at the rates per annum which shall be
determined in accordance with the provisions of the Credit Agreement. Accrued
interest shall be payable on the dates specified in the Credit Agreement.
All payments of principal and interest under this Note shall be made in
lawful money of the United States of America in immediately available funds at
Bank of America National Trust and Savings Association, ABA No. 0000-0000-0,
Account No. 1233-15041 Reference: Colonial Management Associates, or at such
other place as may be designated by the Agent to the Fund in writing.
This Note is the Note referred to in, and evidences indebtedness
incurred under, a Credit Agreement dated as of April 29, 1996 (herein, as it may
be amended, modified or supplemented from time to time, called the "Credit
Agreement") among the Fund, the other parties thereto and the Bank, to which
Credit Agreement reference is made for a statement of the terms and provisions
thereof, including those under which the Fund is permitted and required to make
prepayments and repayments of principal of such indebtedness and under which
such indebtedness may be declared to be immediately due and payable.
A copy of the Agreement and Declaration of Trust of the below-named
trust (the "Trust") is on file with the Secretary of State of The Commonwealth
of Massachusetts and the Clerk of the City of Boston, and notice is hereby given
that none of the shareholders, trustees, officers, employees and other agents of
the Trust or the Fund shall be personally bound by or liable for any
indebtedness, liability or obligation arising hereunder, nor shall resort be had
to their private property for the satisfaction of any obligations or claim
arising hereunder.
All parties hereto, whether as makers, endorsers or otherwise,
severally waive presentment, demand, protest and notice of dishonor in
connection with this Note.
This Note is made under and governed by the internal laws of the State
of Illinois.
[NAME OF TRUST] ON BEHALF OF
[NAME OF FUND]
By: _____________________________
Title: __________________________
LOANS AND PRINCIPAL PAYMENTS
Date Amount of Repaid Principal Amount of Notation
Loan Paid Balance Unpaid Principal Made by
Total
EXHIBIT 2.3
FORM OF LOAN REQUEST
Reference is made to that certain Credit Agreement, dated as of April
29, 1996 (as amended, modified or supplemented from time to time, the "Credit
Agreement"), among the borrowers party thereto, various financial institutions
party thereto and Bank of America National Trust and Savings Association (the
"Bank"). Capitalized terms used herein and not otherwise defined shall have the
meanings given to such terms in the Credit Agreement. Pursuant to the terms of
the Credit Agreement, the undersigned, on behalf of and with respect to the
[Name of Fund], hereby represents and certifies to the Agent and the Banks as
follows:
1. On _______________, the undersigned, on behalf of the [Name of
Fund], requested that the Bank make a [Type of Loan]1 in the principal amount of
$___________to be made on _____________ and having a tenor of
____________________.
2. The purpose for which such Loan will be used is
_________________________
-------------------------------------------------------------------------.
3. As of ____________________2, (i) the Asset Coverage Ratio of such
Fund was as set forth in subparagraph (e) below and (ii) the Borrowing Base of
such Fund was as set forth in subparagraph (f) below, calculated as follows:
(a) Net Asset Value plus proposed
Loan ______________
(b) minus (without duplication) value of Assets subject to Liens
(including, without limitation, margin and asset allocation
arrangements but excluding Liens contemplated by Section
6.13(i)
and (vi)) ______________
(c) Adjusted Net Asset Value
((a) minus (b)) ______________
(d) Indebtedness (including proposed
Loan) ______________
(e) Asset Coverage Ratio ((c) divided
by (d)) ______________
(f) Borrowing Base ((c) times 33 1/3%) ______________
5. The undersigned further certifies, on behalf of the Fund, that (a)
the proceeds of such Loan will be utilized solely by the Fund designated above,
(b) to the best of its knowledge, no Default has occurred and is continuing as
of the date of this Borrowing Certificate and (c) the Asset Coverage Ratio of
the Fund as set forth in its prospectus is not more restrictive than 3 to 1.
6. The undersigned further certifies, on behalf of the Fund, that, with
respect to the Fund, there has not been outstanding, as of the close of business
(San Francisco time) on the day preceding the proposed Borrowing Date for the
requested Loan, a Loan that had been outstanding for at least two (2) weeks.
A copy of the Agreement and Declaration of Trust of the below-named
trust (the "Trust") is on file with the Secretary of State of The Commonwealth
of Massachusetts and the Clerk of the City of Boston, and notice is hereby given
that none of the shareholders, trustees, officers, employees and other agents of
the Trust or the Fund shall be personally bound by or liable for any
indebtedness, liability or obligation arising hereunder, nor shall resort be had
to their private property for the satisfaction of any obligations or claim
arising hereunder.
Date: ____________________ __________, on behalf of
[Name of Fund]
By: _____________________
Title: [Must be an Authorized
Officer of the Trust]
EXHIBIT 2.4
NOTICE OF CONVERSION/CONTINUATION
Date: , 199
To: Bank of America National Trust and Savings Association, as Agent for
the Banks party to the Credit Agreement dated as of April 29, 1996 (as
amended, modified or supplemented from time to time, the "Credit
Agreement") among the investment companies party thereto, certain
financial institutions party thereto and Bank of America National Trust
and Savings Association, as Agent
Ladies and Gentlemen:
The undersigned, ___________________________ (the "Fund"), refers to
the Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 2.4 of the
Credit Agreement, of the [conversion] [continuation] of the Loans specified
herein, that:
1. The Conversion/Continuation Date is , 19 .
------------ --
2. The aggregate amount of the Loans to be [converted]
[continued] is $ .
3. The Loans are to be [converted into] [continued as][Federal
Funds Rate] [Offshore Rate] [Base Rate] Loans.
4. [If applicable:] The duration of the Interest Period for
the Loans included in the [conversion] [continuation] shall be days.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the proposed Conversion/Continuation
Date, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) the representations and warranties of the Fund contained
in Article V of the Credit Agreement are true and correct as though
made on and as of such date (except to the extent such representations
and warranties relate to an earlier date, in which case they are true
and correct as of such date);
(b) no Default has occurred and is continuing or would result
from such proposed [conversion] [continuation];
(c) the proposed [conversion][continuation] will not cause the
aggregate principal amount of all outstanding Loans to exceed the
combined Commitments of the Banks; and
(d) there has not been outstanding, as of the close of
business (San Francisco time) on the day preceding the proposed
continuation date for the requested Loan, a Loan that had been
outstanding for at least two (2) weeks.
A copy of the Agreement and Declaration of Trust of the below-named
trust (the "Trust") is on file with the Secretary of State of The Commonwealth
of Massachusetts and the Clerk of the City of Boston, and notice is hereby given
that none of the shareholders, trustees, officers, employees and other agents of
the Trust or the Fund shall be personally bound by or liable for any
indebtedness, liability or obligation arising hereunder, nor shall resort be had
to their private property for the satisfaction of any obligations or claim
arising hereunder.
__________, on behalf of
[Name of Fund]
By:
Title: [Must be an Authorized Officer]
EXHIBIT 2.14
FORM OF ALLOCATION NOTICE
Date: , 199
To: Bank of America National Trust and Savings Association, as Agent for
the Banks party to the Credit Agreement dated as of April 29, 1996 (as
amended, modified or supplemented from time to time, the "Credit
Agreement") among the investment companies party thereto, certain
financial institutions party thereto and Bank of America National Trust
and Savings Association, as Agent
Ladies and Gentlemen:
Reference is made to the Credit Agreement (the terms defined therein
being used herein as therein defined). This instrument is an Allocation Notice
as contemplated by the Credit Agreement. The allocation of liability of the
Funds as set forth herein shall be effective from the date hereof until a
later-dated Allocation Notice is delivered to the Agent.
=================================================================== ================================================
Name of Fund % Allocation
=================================================================== ================================================
Colonial Income Fund
=================================================================== ================================================
Colonial High Yield Securities Fund
=================================================================== ================================================
Colonial Strategic Income Fund
=================================================================== ================================================
Xxxxx Xxx Advisor Tax Managed Growth Fund
=================================================================== ================================================
Colonial Short Duration U.S. Government Fund
=================================================================== ================================================
Newport Tiger Cub Fund
=================================================================== ================================================
Newport Japan Opportunities Fund
=================================================================== xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxxx Xxxxxxx Xxxxx Fund
=================================================================== ================================================
Colonial Global Equity Fund
=================================================================== ================================================
Colonial International Horizons Fund
=================================================================== ================================================
Colonial Select Value Fund
=================================================================== ================================================
The Colonial Fund
=================================================================== ================================================
Colonial Global Utilities Fund
=================================================================== ================================================
Colonial Strategic Balanced Fund
=================================================================== ================================================
Colonial International Stock Fund
=================================================================== ================================================
Colonial Intermediate Tax Exempt Fund
=================================================================== ================================================
Colonial High Yield Municipal Fund
=================================================================== ================================================
Colonial Utilities Fund
=================================================================== ================================================
Colonial Tax Exempt Insured Fund
=================================================================== ================================================
Colonial Tax Exempt Fund
=================================================================== ================================================
Colonial California Tax Exempt Fund
=================================================================== ================================================
Colonial Connecticut Tax Exempt Fund
=================================================================== ================================================
Colonial Florida Tax Exempt Fund
=================================================================== ================================================
Colonial Massachusetts Tax Exempt Fund
=================================================================== ================================================
Colonial Michigan Tax Exempt Fund
=================================================================== ================================================
Colonial Minnesota Tax Exempt Fund
=================================================================== ================================================
Colonial New York Tax Exempt Fund
=================================================================== ================================================
Colonial North Carolina Tax Exempt Fund
=================================================================== ================================================
Colonial Ohio Tax Exempt Fund
=================================================================== ================================================
Colonial Small Cap Value Fund
=================================================================== ================================================
Colonial Growth and Income Fund
=================================================================== ================================================
Newport Tiger Fund
=================================================================== ================================================
Colonial Value Fund
=================================================================== ================================================
=================================================================== ================================================
Crabbe Huson Contrarian Fund
=================================================================== ================================================
=================================================================== ================================================
Crabbe Huson Contrarian Income Fund
=================================================================== ================================================
=================================================================== ================================================
Crabbe Huson Small Cap Fund
=================================================================== ================================================
=================================================================== ================================================
Crabbe Huson Managed Income & Equity Fund
=================================================================== ================================================
=================================================================== ================================================
Crabbe Huson Equity Fund
=================================================================== ================================================
=================================================================== ================================================
Crabbe Huson Real Estate Investment Fund
=================================================================== ================================================
=================================================================== ================================================
Crabbe Huson Oregon Tax-Free Fund
=================================================================== ================================================
=================================================================== ================================================
Newport Asia Pacific Fund
=================================================================== ================================================
=================================================================== ================================================
100%
=================================================================== ================================================
LIBERTY FUNDS TRUST I, ON BEHALF OF
COLONIAL INCOME FUND, COLONIAL HIGH
YIELD SECURITIES FUND, COLONIAL
STRATEGIC INCOME FUND AND XXXXX XXX
TAX MANAGED GROWTH FUND
By:____________________________________________
Title:__________________________________________
LIBERTY FUNDS TRUST II, ON BEHALF OF
COLONIAL SHORT DURATION U.S.
GOVERNMENT FUND, NEWPORT
TIGER CUB FUND, NEWPORT JAPAN
XXXXXXXXXXXXX XXXX XXX XXXXXXX
XXXXXXX XXXXX FUND
By:____________________________________________
Title:__________________________________________
LIBERTY FUNDS TRUST III, ON BEHALF OF
COLONIAL GLOBAL EQUITY FUND, COLONIAL
INTERNATIONAL HORIZONS FUND, COLONIAL
SELECT VALUE FUND, THE COLONIAL FUND,
COLONIAL GLOBAL UTILITIES FUND,
COLONIAL STRATEGIC BALANCED FUND,
CRABBE HUSON CONTRARIAN FUND,
CRABBE HUSON CONTRARIAN INCOME FUND,
CRABBE HUSON SMALL CAP FUND, CRABBE
HUSON MANAGED INCOME & EQUITY FUND,
CRABBE HUSON EQUITY FUND, CRABBE
HUSON REAL ESTATE INVESTMENT FUND AND
CRABBE HUSON OREGON TAX-FREE FUND
By:____________________________________________
Title:__________________________________________
LIBERTY FUNDS TRUST IV, ON BEHALF OF
COLONIAL INTERMEDIATE TAX EXEMPT
FUND, COLONIAL HIGH YIELD MUNICIPAL
FUND, COLONIAL UTILITIES FUND,
COLONIAL TAX EXEMPT INSURED FUND AND
COLONIAL TAX EXEMPT FUND
By:____________________________________________
Title:__________________________________________
LIBERTY FUNDS TRUST V, ON BEHALF OF
COLONIAL CALIFORNIA TAX EXEMPT FUND,
COLONIAL CONNECTICUT TAX EXEMPT
FUND, COLONIAL FLORIDA TAX EXEMPT
FUND, COLONIAL MASSACHUSETTS TAX
EXEMPT FUND, COLONIAL MICHIGAN TAX
EXEMPT FUND,
COLONIAL MINNESOTA TAX EXEMPT FUND,
COLONIAL NEW YORK TAX EXEMPT FUND,
COLONIAL NORTH CAROLINA TAX EXEMPT
FUND AND COLONIAL OHIO TAX EXEMPT
FUND
By:____________________________________________
Title:__________________________________________
LIBERTY FUNDS TRUST VI, ON BEHALF OF
COLONIAL SMALL CAP VALUE FUND,
COLONIAL U.S. GROWTH AND INCOME FUND
AND COLONIAL VALUE FUND
By:____________________________________________
Title:__________________________________________
LIBERTY FUNDS TRUST VII, ON BEHALF
OF NEWPORT TIGER FUND
By:____________________________________________
Title:__________________________________________
EXHIBIT 4.1(c)
FORM OF OPINION OF COUNSEL TO THE FUNDS
EXHIBIT 5.7-1
SCHEDULE OF LITIGATION
None.
EXHIBIT 5.7-2
SCHEDULE OF CONTINGENT LIABILITIES
None.
EXHIBIT 6.1
FORM OF BORROWING BASE CERTIFICATE
Reference is made to that certain Credit Agreement, dated as of April
29, 1996 (as amended, modified or supplemented from time to time, the "Credit
Agreement"), among certain investment companies party thereto, various financial
institutions party thereto and Bank of America National Trust and Savings
Association, as Agent. Capitalized terms used herein and not otherwise defined
shall have the meanings given to such terms in the Credit Agreement.
Pursuant to the terms of the Credit Agreement, the undersigned, on
behalf of and with respect to the [Name of Fund] (the "Fund"), hereby represents
and certifies to the Agent and the Banks that as of __________ __, 199_, (i) the
Borrowing Base of the Fund was the amount shown in subparagraph (e) below and
(ii) the Asset Coverage Ratio was the ratio set forth in subparagraph (f) below,
each calculated as follows:
(a) Net Asset Value ______________
(b) minus (without duplication) value of Assets subject to Liens
(including, without limitation, margin and asset allocation
arrangements but excluding Liens contemplated by Section
6.13(i) and (vi)) ______________
(c) Adjusted Net Asset Value
((a) minus (b)) ______________
(d) Indebtedness ______________
(e) Borrowing Base ((c) times 33 1/3%) ______________
(f) Asset Coverage Ratio ((c) divided
by (d)) ______________
The Asset Coverage Ratio of the Fund as set forth in its prospectus is
not more restrictive than 3 to 1.
[To the best knowledge of the undersigned Authorized Officer, no
Default with respect to the Fund has occurred and is continuing.]
[Describe Event of Default and actions being taken to remedy it.]
A copy of the Agreement and Declaration of Trust of the below-named
trust (the "Trust") is on file with the Secretary of State of The Commonwealth
of Massachusetts and the Clerk of the City of Boston, and notice is hereby given
that none of the shareholders, trustees, officers, employees and other agents of
the Trust or the Fund shall be personally bound by or liable for any
indebtedness, liability or obligation arising hereunder, nor shall resort be had
to their private property for the satisfaction of any obligations or claim
arising hereunder.
Date: ____________________ __________, on behalf of
[Name of Fund]
By:
Title: [Must be an Authorized
Officer]
ANNEX I
Original Borrower Parties
Liberty Funds Trust I on behalf of Colonial Income Fund, Colonial High Yield
Securities Fund, Colonial Strategic Income Fund and Xxxxx Xxx Advisor Tax
Managed Growth Fund
Liberty Funds Trust II on behalf of Colonial Short Duration U.S. Government
Fund, Newport Tiger Cub Fund, Newport Japan Opportunities Fund and Newport
Greater China Fund
Liberty Funds Trust III on behalf of Colonial Global Equity Fund, Colonial
International Horizons Fund, Colonial Select Value Fund, The Colonial Fund,
Colonial Global Utilities Fund and Colonial Strategic Balanced Fund
Liberty Funds Trust IV on behalf of Colonial Intermediate Tax Exempt Fund,
Colonial High Yield Municipal Fund, Colonial Utilities Fund, Colonial Tax Exempt
Insured Fund and Colonial Tax Exempt Fund
Liberty Funds Trust V on behalf of Colonial California Tax Exempt Fund, Colonial
Connecticut Tax Exempt Fund, Colonial Florida Tax Exempt Fund, Colonial
Massachusetts Tax Exempt Fund, Colonial Michigan Tax Exempt Fund, Colonial
Minnesota Tax Exempt Fund, Colonial New York Tax Exempt Fund, Colonial North
Carolina Tax Exempt Fund and Colonial Ohio Tax Exempt Fund
Liberty Funds Trust VI on behalf of Colonial Small Cap Value Fund and Colonial
U.S. Growth and Income Fund
Liberty Funds Trust VII on behalf of Newport Tiger Fund
New Borrower Parties
Liberty Funds Trust III, on behalf of Crabbe Huson Contrarian Fund, Crabbe Huson
Contrarian Income Fund, Crabbe Huson Small Cap Fund, Crabbe Huson Managed Income
& Equity Fund, Crabbe Huson Equity Fund, Crabbe Huson Real Estate Investment
Fund and Crabbe Huson Oregon Tax-Free Fund
Liberty Funds Trust VI, on behalf of Colonial Value Fund (formerly known as the
Colonial Equity Income Fund) and Newport Asia Pacific Fund
--------
1 If request relates to a Swing Loan, insert Swing Loan.
2 Use immediately preceding Business Day.
