EXHIBIT 8(i)
BANK OF AMERICA, N.A.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
January 11, 2001
USAA Mutual Fund, Inc.,
USAA Investment Trust,
USAA Tax Exempt Fund, Inc., and
USAA State Tax-Free Trust, not in their individual
capacities but on behalf of and for the benefit
of the series of funds comprising each such
Borrower as set forth on SCHEDULE A hereto
0000 Xxxxxxxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. X. Xxxx, President
Ladies and Gentlemen:
This Facility Agreement Letter (this "AGREEMENT") sets forth the terms and
conditions for loans (each a "LOAN" and collectively the "LOANS") which Bank of
America, N.A. (the "BANK"), agrees to make during the period commencing January
11, 2001 and ending January 10, 2002 (the "FACILITY PERIOD") to USAA Mutual
Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA State
Tax-Free Trust, and each investment company which may become a party hereto
pursuant to the terms of this Agreement (each a "BORROWER" and collectively the
"BORROWERS"), each of which is executing this Agreement not in its individual
capacity, but on behalf of and for the benefit of the series of funds
comprising each such Borrower as set forth on SCHEDULE A hereto (as hereafter
modified or amended in accordance with the terms hereof) (each a "FUND" and
collectively the "FUNDS"), under a master revolving credit facility (the
"FACILITY"). This Agreement replaces in its entirety that certain Facility
Agreement Letter dated January 12, 2000, as heretofore amended or modified,
between the Borrowers and the Bank. The Bank and the Borrowers hereby agree as
follows:
1. AMOUNT. The aggregate principal amount of the Loans to be advanced
under this Facility shall not exceed, at any one time outstanding, Xxx Xxxxxxx
Xxxxxxx Xxxxxx Xxxxxx Dollars (U.S. $100,000,000) (the "COMMITMENT"). The
aggregate principal amount of the Loans which may be borrowed by a Borrower for
the benefit of a particular Fund under the Facility and the Other Facility
(hereinafter defined) shall not exceed the percentage (the "BORROWING LIMIT")
of the total assets of such Fund as set forth on SCHEDULE A hereto.
2. PURPOSE AND LIMITATIONS ON BORROWINGS. Each Borrower will use the
proceeds of each Loan made to it solely for temporary or emergency purposes of
the Fund for whose benefit it is borrowing in accordance with such Fund's
Borrowing Limit and prospectus in effect at the time of such Loan. Portfolio
securities may not be purchased by a Fund while there is a Loan outstanding
under the Facility and/or a loan outstanding under the Other Facility for the
benefit of such Fund, if the aggregate amount of such Loan and such other loan
exceeds 5% of the total assets of such Fund. The Borrowers will not, and will
not permit any Fund to, directly or indirectly, use any proceeds of any Loan
for any purpose which would violate any provision of any applicable statute,
regulation, order or restriction, including, without limitation, Regulation U,
Regulation T, Regulation X or any other regulation of the Board of Governors of
the Federal Reserve System or the Securities Exchange Act of 1934, as amended.
If requested by the Bank, the Borrowers will
USAA Mutual Fund, Inc., et al
January 11, 2001
Page 2
promptly furnish the Bank with a statement in conformity with the requirements
of Federal Reserve Form U-1 as referred to in Regulation U.
3. BORROWING RATE AND MATURITY OF LOANS. The principal amount of each
Loan outstanding from time to time shall bear interest from the date each such
Loan is made to, but excluding the date of payment in full thereof, at a rate
per annum equal to, at the option of the applicable Borrower, (i) the aggregate
of the Federal Funds Rate (as defined below) plus .50 of one percent (1%) (50
basis points) or (ii) the aggregate of the London Interbank Offered Rate (as
defined below) plus 50 basis points. The rate of interest payable on any Loan
bearing interest on the basis of the Federal Funds Rate shall change on each
date that the Federal Funds Rate shall change. Interest on the Loans shall be
calculated on the basis of a year of 360 days and the actual days elapsed but
shall not exceed the highest lawful rate. Each Loan will be for an established
number of days to be agreed upon by the applicable Borrower and the Bank on or
before the date of such Loan and, in the absence of such agreement, will mature
on the earlier of three months after the date of such Loan or the last day of
the Facility Period. The term "FEDERAL FUNDS RATE," as used herein, shall mean
the overnight rate for Federal funds transactions between member banks of the
Federal Reserve System, as published by the Federal Reserve Bank of New York
or, if not so published, as determined in good faith by the Bank in accordance
with its customary practices; and the term "LONDON INTERBANK OFFERED RATE," as
used herein, shall mean the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. London time two business days prior to the first day
of and for the interest period (of 7 or 14 days or one, two or three months as
selected by the Borrower(s)) for which the London Interbank Offered Rate is to
be in effect, as adjusted by the Bank in good faith and in accordance with its
customary practices for any reserve costs imposed on the Bank under Federal
Reserve Board Regulation D with respect to "EURO-CURRENCY LIABILITIES." The
London Interbank Offered Rate shall not be available hereunder for a Loan if it
would be unlawful for the Bank to make or maintain such Loan based on such rate
or if such rate does not, in the good faith judgment of the Bank, fairly
reflect the cost to the Bank of making or maintaining such Loan. The London
Interbank Offered Rate shall not be available for any interest period which, if
such rate were available, would begin after the occurrence and during the
continuation of an Event of Default (as defined below). Any past due principal
and/or accrued interest or fee shall bear interest at a rate per annum equal to
the aggregate of the Federal Funds Rate plus 1.50 percent (150 basis points),
but not to exceed the highest lawful rate, from the date any such payment was
due to, but excluding the date of payment in full thereof, and shall be payable
on demand. If the applicable Borrower does not affirmatively elect to have a
Loan or Loans bear interest based on the London Interbank Offered Rate at least
two business days prior to the first day of a possible interest period
applicable thereto, such Loan shall bear interest based on the Federal Funds
Rate until such election is affirmatively made.
4. ADVANCES, PAYMENTS, PREPAYMENTS AND READVANCES. Upon each Borrower's
request, and subject to the terms and conditions contained herein, the Bank
shall make Loans to each Borrower on behalf of and for the benefit of its
respective Fund(s) during the Facility Period, and each Borrower may borrow,
repay and reborrow Loans hereunder. The Loans shall be evidenced by a duly
executed and delivered Master Grid Promissory Note in the form of EXHIBIT A.
Each Loan shall be in an aggregate amount not less than Xxx Xxxxxxx Xxxxxxxx
Xxxxxx Xxxxxx Dollars (U.S. $100,000) and increments of One Thousand United
States Dollars (U.S. $1,000) in excess thereof. Payment of principal and
interest due with respect to each Loan shall be payable at the maturity of such
Loan and shall be made in funds immediately available to
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the Bank prior to 2:00 p.m. Dallas time on the day such payment is due, or as
the Bank shall otherwise direct from time to time and, subject to the terms and
conditions hereof, may be repaid with the proceeds of a new borrowing
hereunder. Notwithstanding any provision of this Agreement to the contrary, all
Loans, accrued but unpaid interest and other amounts payable hereunder shall be
due and payable upon termination of the Facility (whether by acceleration or
otherwise). If any Loan bearing interest based on the London Interbank Offered
Rate is repaid or prepaid other than on the last day of an interest period
applicable thereto, the Fund which is the beneficiary of such Loan shall pay to
the Bank promptly upon demand such amount as the Bank determines in good faith
is necessary to compensate the Bank for any reasonable cost or expense incurred
by the Bank as a result of such repayment or prepayment in connection with the
reemployment of funds in an amount equal to such repayment or prepayment.
Whenever the Bank seeks to assess for any such cost or expense it will provide
a certificate as the applicable Borrower shall reasonably request.
5. FACILITY FEE. Beginning with the date of this Agreement and until
such time as all Loans have been irrevocably repaid to the Bank in full, and
the Bank is no longer obligated to make Loans, each Fund (to be allocated among
the Funds as the Borrowers deem appropriate) severally shall pay to the Bank
its allocated share of a facility fee (the "FACILITY FEE") in an aggregate
amount equal to .09 of one percent (9 basis points) of the amount of the
Commitment (whether used or unused), as it may be reduced pursuant to SECTION
6. The Facility Fee shall be payable quarterly in arrears beginning March 31,
2001, and upon termination of the Facility (whether by acceleration or
otherwise).
6. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENT. The Borrowers on
behalf of the applicable Funds shall have the right upon at least three (3)
business days prior written notice to the Bank, to terminate or reduce the
unused portion of the Commitment. Any such reduction of the Commitment shall be
in the amount of Five Million United States Dollars (U.S. $5,000,000) or any
larger integral multiple of One Million United States Dollars (U.S. $1,000,000)
(except that any reduction may be in the aggregate amount of the unused
Commitment). Accrued fees with respect to the terminated Commitment shall be
payable to the Bank on the effective date of such termination.
7. MANDATORY TERMINATION OF COMMITMENT. The Commitment shall
automatically terminate on the last day of the Facility Period and any Loans
then outstanding (together with accrued interest thereon and any other amounts
owing hereunder) shall be due and payable on such date.
8. COMMITTED FACILITY. The Bank acknowledges that the Facility is a
committed facility and that the Bank shall be obligated to make any Loan
requested during the Facility Period under this Agreement, subject to the terms
and conditions hereof; provided, however, that the Bank shall not be obligated
to make any Loan if this Facility has been terminated by the Borrowers, or to a
Borrower on behalf of a proposed borrowing Fund, if at the time of a request
for a Loan by such Borrower (on behalf of such applicable borrowing Fund) there
exists any Event of Default or condition which, with the passage of time or
giving of notice, or both, would constitute or become an Event of Default with
respect to such Fund.
9. LOAN REQUESTS. Each request for a Loan (each a "BORROWING NOTICE")
shall be in writing by the applicable Borrower, except that such Borrower may
make an oral request (each an "ORAL REQUEST") provided that each Oral Request
shall be followed by a written Borrowing Notice within one business day. Each
Borrowing Notice shall specify the following terms ("TERMS") of the requested
Loan: (i) the date on
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January 11, 2001
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which such Loan is to be disbursed, (ii) the principal amount of such Loan,
(iii) the Borrower which is borrowing such Loan, (iv) the Fund(s) for whose
benefit the Loan is being borrowed and the amount of the Loan which is for the
benefit of each such Fund, (v) whether such Loan shall bear interest based on
the Federal Funds Rate or the London Interbank Offered Rate, and (vi) the
requested maturity date of the Loan. Each Borrowing Notice shall also set forth
the total assets of each Fund for whose benefit a portion of the Loan is being
borrowed as of the close of business on the day immediately preceding the date
of such Borrowing Notice. Borrowing Notices shall be delivered to the Bank by
1:00 p.m. Dallas time on the day the Loan is requested to be made if such Loan
is to bear interest based on the Federal Funds Rate or by 10:00 a.m. Dallas
time on the second business day before the Loan is requested to be made if such
Loan is to bear interest based on the London Interbank Offered Rate.
Each Borrowing Notice shall constitute a representation to the Bank by the
applicable Borrower on behalf of the proposed borrowing Fund(s) of such
Borrower that all of the representations and warranties made by such Borrower
on behalf of the applicable borrowing Fund(s) of such Borrower in SECTION 12
hereof are true and correct as of such date and that no Event of Default or
other condition which with the passage of time or giving of notice, or both,
would result in an Event of Default, has occurred or is occurring with respect
to such proposed borrowing Fund(s).
10. CONFIRMATIONS; CREDITING OF FUNDS; RELIANCE BY THE BANK. Upon receipt
by the Bank of a Borrowing Notice:
(a) The Bank shall send the applicable Borrower written
confirmation of the Terms of such Loan via facsimile or telecopy, as
soon as reasonably practicable; provided, however, that the failure to
do so shall not affect the obligation of such Borrower;
(b) The Bank shall make such Loan in accordance with the Terms
by transfer of the Loan amount in immediately available funds, to the
account of the applicable Borrower as specified in EXHIBIT B to this
Agreement or as such Borrower shall otherwise specify to the Bank in a
writing signed by an Authorized Individual (as defined in SECTION 11) of
such Borrower and sent to the Bank via facsimile or telecopy; and
(c) The Bank shall make appropriate entries on the Note or the
records of the Bank to reflect the Terms of the Loan; provided, however,
that the failure to do so shall not affect the obligation of any
borrowing Fund.
The Bank shall be entitled to rely upon and act hereunder pursuant to any Oral
Request which it reasonably believes to have been made by the applicable
Borrower through an Authorized Individual. If any Borrower believes that the
confirmation relating to any Loan contains any error or discrepancy from the
applicable Oral Request, such Borrower will promptly notify the Bank thereof.
11. BORROWING RESOLUTIONS AND OFFICERS' CERTIFICATES; SUBORDINATION
AGREEMENT. Prior to the making of any Loan pursuant to this Agreement, the
Borrowers shall have delivered to the Bank (a) the duly executed Note, (b)
resolutions of each Borrower's Trustees or Board of Directors authorizing each
Borrower to execute, deliver and perform this Agreement and the Note on behalf
of the applicable Funds, (c) an
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Officer's Certificate in substantially the form set forth in EXHIBIT D to this
Agreement, authorizing certain individuals ("AUTHORIZED INDIVIDUALS") to take
on behalf of each Borrower (on behalf of the applicable Funds) actions
contemplated by this Agreement and the Note, (d) a subordination agreement in
substantially the form set forth in EXHIBIT E to this Agreement, and (e) the
opinion of counsel to USAA Investment Management Company, manager and advisor
to the Borrowers, with respect to such matters as the Bank may reasonably
request.
12. REPRESENTATIONS AND WARRANTIES. In order to induce the Bank to enter
into this Agreement and to make the Loans provided for hereunder, each Borrower
hereby severally, makes on behalf of each of its respective series of Funds
comprising such Borrower the following representations and warranties, which
shall survive the execution and delivery hereof and of the Note:
(a) ORGANIZATION, STANDING, ETC. Such Borrower is a corporation
or trust duly organized, validly existing, and in good standing under
applicable state laws and has all requisite corporate or trust power and
authority to carry on its respective businesses as now conducted and
proposed to be conducted, to enter into this Agreement and all other
documents to be executed by it in connection with the transactions
contemplated hereby, to issue and borrow under the Note and to carry out
the terms hereof and thereof;
(b) FINANCIAL INFORMATION; DISCLOSURE, ETC. Such Borrower has
furnished the Bank with certain financial statements of such Borrower
with respect to itself and the applicable Fund(s), all of which such
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis and fairly
present the financial position and results of operations of such
Borrower and the applicable Funds on the dates and for the periods
indicated. Neither this Agreement nor any financial statements, reports
or other documents or certificates furnished to the Bank by such
Borrower on behalf of the applicable Fund(s) in connection with the
transactions contemplated hereby contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements contained herein or therein in light of the circumstances
when made not misleading;
(c) AUTHORIZATION; COMPLIANCE WITH OTHER INSTRUMENTS. The
execution, delivery and performance of this Agreement and the Note, and
borrowings hereunder, have been duly authorized by all necessary
corporate or trust action of such Borrower and will not result in any
violation of or be in conflict with or constitute a default under any
term of the charter, by-laws or trust agreement, as applicable, of such
Borrower or of any borrowing restrictions or prospectus or statement of
additional information of such Borrower or the applicable Fund(s), or of
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Borrower on behalf of the
applicable Fund(s), or result in the creation of any mortgage, lien,
charge or encumbrance upon any of the properties or assets of the
applicable Fund(s) pursuant to any such term. Such Borrower is not in
violation of any term of its respective charter, by-laws or trust
agreement, as applicable, and such Borrower and the applicable Fund(s)
are not in violation of any material term of any agreement or instrument
to which they are a party, or to the best of such Borrower's knowledge,
of any judgment, decree, order, statute, rule or governmental regulation
applicable to them;
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(d) SEC COMPLIANCE. Such Borrower and the applicable Fund(s)
are in compliance in all material respects with all federal and state
securities or similar laws and regulations, including all material
rules, regulations and administrative orders of the Securities and
Exchange Commission (the "SEC") and applicable Blue Sky authorities.
Such Borrower and the applicable Fund(s) are in compliance in all
material respects with all of the provisions of the Investment Company
Act of 1940, and such Borrower has filed all reports with the SEC that
are required of it or the applicable Fund(s);
(e) LITIGATION. There is no action, suit or proceeding pending
or, to the best of such Borrower's knowledge, threatened against such
Borrower or the applicable Fund(s) in any court or before any arbitrator
or governmental body which seeks to restrain any of the transactions
contemplated by this Agreement or which could reasonably be expected to
have a material adverse effect on the assets or business operations of
such Borrower or the applicable Fund(s) or the ability of such
applicable Fund(s) to pay and perform their respective obligations
hereunder and under the Notes; and
(f) FUNDS' OBLIGATIONS FOR REPAYMENT. The assets of each Fund
for whose benefit Loans are borrowed by the applicable Borrower are
subject to and liable for such Loans. The Bank may only seek repayment
from the assets of the Fund of a Borrower that obtained a Loan, and may
not seek repayment of that Loan from the assets of any other Fund of
that Borrower.
13. AFFIRMATIVE COVENANTS OF THE BORROWERS. Until such time as all
amounts of principal interest and other sums due to the Bank by a Borrower
pursuant to any Loan made to such Borrower for the benefit of the applicable
Fund(s) is irrevocably paid in full, and until the Bank is no longer obligated
to make Loans to such Borrower for the benefit of the applicable Fund(s), such
Borrower (on behalf of its respective Fund(s)) severally agrees:
(a) To deliver to the Bank as soon as possible and in any event
within ninety (90) days after the end of each fiscal year of such
Borrower and the applicable Fund(s), Statements of Assets and
Liabilities, Statements of Operations and Statements of Changes in Net
Assets of each applicable Fund for such fiscal year, as set forth in
each applicable Fund's Annual Report to shareholders together with a
calculation of the maximum amount which each applicable Fund could
borrow under its Borrowing Limit as of the end of such fiscal year;
(b) To deliver to the Bank as soon as available and in any
event within seventy-five (75) days after the end of each semiannual
period of such Borrower and the applicable Fund(s), Statements of Assets
and Liabilities, Statements of Operations and Statements of Changes in
Net Assets of each applicable Fund as of the end of such semiannual
period, as set forth in each applicable Fund's Semiannual Report to
shareholders, together with a calculation of the maximum amount which
each applicable Fund could borrow under its Borrowing Limit at the end
of such semiannual period;
(c) To deliver to the Bank prompt notice of the occurrence of
any event or condition which constitutes, or is likely to result in, a
change in such Borrower or any applicable Fund which could reasonably be
expected to materially adversely affect the ability of any applicable
Fund to
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promptly repay outstanding Loans made for its benefit or the ability of
such Borrower or the applicable Fund(s) to perform their respective
obligations under this Agreement or the Note;
(d) To do, or cause to be done, all things necessary to
preserve and keep in full force and effect the corporate or trust
existence of such Borrower and all permits, rights and privileges
necessary for the conduct of its businesses and to comply in all
material respects with all applicable laws, regulations and orders,
including without limitation, all rules and regulations promulgated by
the SEC;
(e) To promptly notify the Bank of any litigation, threatened
legal proceeding or investigation by a governmental authority which
could reasonably be expected to materially affect the ability of any
applicable Fund to promptly repay the outstanding Loans made for its
benefit hereunder or the ability of such Borrower or the applicable
Fund(s) to otherwise perform their respective obligations hereunder;
(f) In the event a Loan for the benefit of a particular Fund is
not repaid in full within 10 days after the date it is borrowed, and
until such Loan is repaid in full, to deliver to the Bank, within two
business days after each Friday occurring after such 10th day, a
statement setting forth the total assets of such Fund as of the close of
business on each such Friday; and
(g) Upon the request of the Bank, which may be made by the Bank
from time to time in the event the Bank in good faith believes that
there has been a material adverse change in the capital markets
generally, to deliver to the Bank, within two business days after any
such request, a statement setting forth the total assets of each Fund
for whose benefit a Loan is outstanding on the date of such request.
14. NEGATIVE COVENANTS OF THE BORROWERS. Until such time as all amounts
of principal, interest and other sums due to the Bank by a Borrower pursuant to
any Loan made to such Borrower for the benefit of the applicable Fund(s) is
irrevocably paid in full, and until the Bank is no longer obligated to make
Loans to such Borrower for the benefit of the applicable Fund, such Borrower
(on behalf of its respective Fund(s)) severally agrees:
(a) Not to incur any indebtedness for borrowed money (other
than pursuant to a $400,000,000 committed master revolving credit
facility with USAA Capital Corporation (the "OTHER FACILITY") and
overdrafts incurred at the custodian of the Funds from time to time in
the ordinary course of business) except the Loans, without the prior
written consent of the Bank, which consent will not be unreasonably
withheld; and
(b) Not to dissolve or terminate its existence, or merge or
consolidate with any other person or entity, or sell all or
substantially all of its assets in a single transaction or series of
related transactions (other than assets consisting of margin stock),
each without the prior written consent of the Bank, which consent will
not be unreasonably withheld; provided that a Borrower or Fund may
without such consent merge, consolidate with, or purchase substantially
all of the assets of, or sell substantially all of its assets to, an
affiliated investment company or series thereof, as provided for in Rule
17a-8 of the Investment Company Act of 1940.
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15. EVENTS OF DEFAULT. If any of the following events (each an "EVENT
OF DEFAULT") shall occur (it being understood that an Event of Default with
respect to one Fund shall not constitute an Event of Default with respect to
any other Fund):
(a) A Fund shall default in the payment of principal or
interest on any Loan or any other fee due hereunder for a period of five
(5) days after the same becomes due and payable, whether at maturity or,
with respect to the Facility Fee, at a date fixed for the payment
thereof;
(b) A Fund shall default in the performance of or compliance
with any term contained in SECTION 13 hereof and such default shall not
have been remedied within thirty (30) days after written notice thereof
shall have been given to the applicable Borrower on behalf of such Fund
by the Bank;
(c) A Fund shall default in the performance of or compliance
with any term contained in SECTION 14 hereof;
(d) A Fund shall default in the performance or compliance with
any other term contained herein and such default shall not have been
remedied within thirty (30) days after written notice thereof shall have
been given to the applicable Borrower on behalf of such Fund by the
Bank;
(e) Any representation or warranty made by or on behalf of a
Fund herein or pursuant hereto shall prove to have been false or
incorrect in any material respect when made;
(f) USAA Investment Management Company or any successor manager
or investment adviser, provided that such successor is a wholly-owned
subsidiary of USAA Capital Corporation, shall cease to be the manager
and investment advisor of a Fund; or
(g) An event of default shall occur and be continuing under the
Other Facility with respect to a Fund;
then, in any event, and at any time thereafter, if any Event of Default shall
be continuing, the Bank may by written notice to the applicable Borrower (i)
terminate its commitment to make any Loan hereunder to such Borrower with
respect to such Fund, whereupon said commitment shall forthwith terminate
without any other notice of any kind and (ii) declare the principal and
interest in respect of any outstanding Loans with respect to such Fund, and all
other amounts due hereunder with respect to such Fund, to be immediately due
and payable whereupon the principal and interest in respect thereof and all
other amounts due hereunder shall become forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived by the Borrowers on behalf of the applicable Funds.
16. NEW BORROWERS; NEW FUNDS. So long as no Event of Default or
condition which, with the passage of time or the giving of notice, or both,
would constitute or become an Event of Default has occurred and is continuing,
and with the prior consent of the Bank, which consent will not be unreasonably
withheld:
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(a) Any investment company that becomes part of the same "group
of investment companies" (as that term is defined in Rule 11a-3 under
the Investment Company Act of 1940) as the original Borrowers to this
Agreement, may, by submitting an amended SCHEDULE A and EXHIBIT B to
this Agreement to the Bank (which amended SCHEDULE A and EXHIBIT B shall
replace the SCHEDULE A and EXHIBIT B which are then a part of this
Agreement) and such other documents as the Bank may reasonably request,
become a party to this Agreement and may become a "BORROWER" hereunder;
and
(b) A Borrower may, by submitting an amended SCHEDULE A and
EXHIBIT B to this Agreement to the Bank (which amended SCHEDULE A and
EXHIBIT B shall replace the SCHEDULE A and EXHIBIT B which are then a
part of this Agreement), add additional Funds for whose benefit such
Borrower may borrow Loans. No such amendment of SCHEDULE A to this
Agreement shall amend the Borrowing Limit applicable to any Fund without
the prior consent of the Bank.
17. LIMITED RECOURSE. The Bank agrees (i) that any claim, liability, or
obligation arising hereunder or under the Note whether on account of the
principal of any Loan, interest thereon, or any other amount due hereunder or
thereunder shall be satisfied only from the assets of the specific Fund for
whose benefit a Loan is borrowed and in any event in an amount not to exceed
the outstanding principal amount of any Loan borrowed for such Fund's benefit,
together with accrued and unpaid interest due and owing thereon, and such
Fund's share of any other amount due hereunder and under the Note (as
determined in accordance with the provisions hereof) and (ii) that no assets of
any Fund shall be used to satisfy any claim, liability, or obligation arising
hereunder or under the Note with respect to the outstanding principal amount of
any Loan borrowed for the benefit of any other Fund or any accrued and unpaid
interest due and owing thereon or such other Fund's share of any other amount
due hereunder and under the Note (as determined in accordance with the
provisions hereof).
18. REMEDIES ON DEFAULT. In case any one or more Events of Default shall
occur and be continuing, the Bank may proceed to protect and enforce its rights
by an action at law, suit in equity or other appropriate proceedings, against
the applicable Borrower on behalf of the applicable defaulting Fund(s), as the
case may be. In the case of a default in the payment of any principal or
interest on any Loan or in the payment of any fee due hereunder, the relevant
Fund(s) (to be allocated among such Funds as the Borrowers deem appropriate)
severally shall pay to the Bank such further amount as shall be sufficient to
cover the cost and expense of collection, including, without limitation,
reasonable attorney's fees and expenses from the relevant Fund.
19. NO WAIVER OF REMEDIES. No course of dealing or failure or delay on
the part of the Bank in exercising any right or remedy hereunder or under the
Note shall constitute a waiver of any right or remedy hereunder or under the
Note, nor shall any partial exercise of any right or remedy hereunder or under
the Note preclude any further exercise thereof or the exercise of any other
right or remedy hereunder or under the Note. Such rights and remedies expressly
provided are cumulative and not exclusive of any rights or remedies which the
Bank would otherwise have.
20. EXPENSES. Each of the Funds severally shall pay on demand all
reasonable out-of-pocket costs and expenses (including reasonable attorney's
fees and expenses) incurred by the Bank in connection
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Page 10
with the collection and any other enforcement proceedings of or regarding this
Agreement, any Loan or the Note against such Fund.
21. BENEFIT OF AGREEMENT. This Agreement and the Note shall be binding
upon and inure for the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided that no party to this
Agreement or the Note may assign any of its rights hereunder or thereunder
without the prior written consent of the other parties. The Bank may not sell
participations and subparticipations in all or any part of the Loans made
hereunder without the prior consent of the Borrowers, which consent shall not
be unreasonably withheld.
22. NOTICES. All notices hereunder and all written, facsimiled or
telecopied confirmations of Oral Requests made hereunder shall be sent to the
Borrowers as indicated on EXHIBIT B and to the Bank as indicated on EXHIBIT C.
Written communications shall be deemed to have been duly given and made as
follows: If sent by mail, seventy-two (72) hours after deposit in the mail with
first-class postage prepaid, addressed as provided in EXHIBIT B (the Borrowers)
and EXHIBIT C (the Bank); and in the case of facsimile or telecopy, when the
facsimile or telecopy is received if on a business day or otherwise on the next
business day.
23. MODIFICATIONS. No provision of this Agreement or the Note may be
waived, modified or discharged except by mutual written agreement of all
parties. THIS WRITTEN LOAN AGREEMENT AND THE NOTE REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
24. INCREASED COST AND REDUCED RETURN. If at any time after the date
hereof, the Bank (which shall include, for purposes of this Section, any
corporation controlling the Bank) determines that the adoption or modification
of any applicable law regarding the Bank's required levels of reserves, other
than the reserve requirement taken into account when computing the London
Interbank Offered Rate as provided in SECTION 3, or capital (including any
allocation of capital requirements or conditions), or similar requirements, or
any interpretation or administration thereof by a governmental body or
compliance by the Bank with any of such requirements, has or would have the
effect of (a) increasing the Bank's costs relating to the Loans, or (b)
reducing the yield or rate of return of the Bank on the Loans, to a level below
that which the Bank could have achieved but for the adoption or modification of
any such requirements, the Funds (to be allocated among the Funds as the
Borrowers deem appropriate) severally shall, within fifteen (15) days of any
request by the Bank, pay to the Bank such additional amounts as (in the Bank's
sole judgment, after good faith and reasonable computation) will compensate the
Bank for such increase in costs or reduction in yield or rate of return of the
Bank. Whenever the Bank shall seek compensation for any increase in costs or
reduction in yield or rate of return, the Bank shall provide a certificate as
the Borrower(s) shall reasonably request. Failure by the Bank to demand payment
within 90 days of any additional amounts payable hereunder shall constitute a
waiver of the Bank's right to demand payment of such amounts at any subsequent
time. Nothing herein contained shall be construed or so operate as to require
the Funds to pay any interest, fees, costs or charges greater than is permitted
by applicable law.
D-852586.4
USAA Mutual Fund, Inc., et al
January 11, 2001
Page 11
25. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed
by and construed in accordance with the laws of the state of Texas without
regard to the choice of law provisions thereof. Chapter 346 of the Texas
Finance Code shall not apply to this Agreement or the Loans made hereunder.
26. TRUST DISCLAIMER. Neither the shareholders, trustees, officers,
employees and other agents of any Borrower or Fund shall be personally bound by
or liable for any indebtedness, liability or obligation hereunder or under the
Note nor shall resort be had to their private property for the satisfaction of
any obligation or claim hereunder.
If this letter correctly reflects your agreement with us, please execute both
copies hereof and return one to us, whereupon this Agreement shall be binding
upon the Borrowers (not in their individual capacities, but on behalf of and
for the benefit of their respective Funds listed on SCHEDULE A hereto) and the
Bank.
Sincerely,
BANK OF AMERICA, N.A.
By: /S/ XXXX X'XXXXX
------------------
Xxxx X'Xxxxx, Managing Director
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE(S) FOLLOW]
D-852586.4
Signature to the Facility Agreement Letter dated January 11, 2001, between USAA
Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA
State Tax-Free Trust (not in their individual capacities, but on behalf of and
for the benefit of the series of funds set forth on SCHEDULE A hereto) and Bank
of America, N.A.
AGREED AND ACCEPTED:
USAA MUTUAL FUND, INC.,
on behalf of and for the benefit
of its series of Funds as set forth
on SCHEDULE A to this Agreement
By: /S/ XXXXXXX X. X. XXXX
----------------------------
Xxxxxxx X. X. Xxxx, President
USAA INVESTMENT TRUST,
on behalf of and for the benefit
of its series of Funds as set forth
on SCHEDULE A to this Agreement
By: /S/ XXXXXXX X. X. XXXX
-------------------------------
Xxxxxxx X.X. Xxxx, President
USAA TAX EXEMPT FUND, INC.,
on behalf of and for the benefit
of its series of Funds as set forth
on SCHEDULE A to this Agreement
By: /S/ XXXXXXX X. X. XXXX
--------------------------------------------
Xxxxxxx X.X. Xxxx, President
USAA STATE TAX-FREE TRUST,
on behalf of and for the benefit
of its series of Funds as set forth
on SCHEDULE A to this Agreement
By: /S/ XXXXXXX X. X. XXXX
--------------------------------------------
Xxxxxxx X.X. Xxxx, President
D-852586.4
SCHEDULE A
----------
FUNDS FOR WHOSE BENEFIT LOANS CAN BE BORROWED
UNDER FACILITY AGREEMENT AND BORROWING LIMIT
BORROWER FUNDS MAXIMUM PERCENT OF THE TOTAL
ASSETS WHICH CAN BE BORROWED
UNDER FACILITY AGREEMENT AND
OTHER FACILITY
USAA Mutual Fund, Inc. USAA Aggressive Growth 25%
USAA Growth & Income 25
USAA Income Stock 25
USAA Short-Term Bond 25
USAA Money Market 25
USAA Growth 25
USAA Income 25
USAA S&P 500 Index 25
USAA Science & Technology 25
USAA First Start Growth 25
USAA High Yield Opportunities 25
USAA Intermediate-Term Bond 25
USAA Small Cap Stock 25
USAA Extended Market Index 25
USAA Nasdaq-100 Index 25
USAA Global Titans Index 25
USAA Capital Growth 25
USAA Investment Trust USAA Cornerstone Strategy 25
USAA Gold 25
USAA International 25
USAA World Growth 25
USAA GNMA Trust 25
USAA Treasury Money Market Trust 25
USAA Emerging Markets 25
USAA Growth and Tax Strategy 25
USAA Growth Strategy 25
USAA Income Strategy 25
USAA Balanced Strategy 25
USAA Tax Exempt Fund, Inc. USAA Long-Term 15
USAA Intermediate-Term 15
USAA Short-Term 15
USAA Tax Exempt Money Market 15
USAA California Bond 15
USAA California Money Market 15
USAA New York Bond 15
USAA New York Money Market 15
USAA Xxxxxxxx Xxxx 15
USAA Virginia Money Market 15
USAA State Tax-Free Trust USAA Florida Tax-Free Income 15
USAA Florida Tax-Free Money Market 15
D-852586.4 SCHEDULE A
----------
EXHIBIT A
---------
MASTER GRID PROMISSORY NOTE
U.S. $100,000,000 Dated: January 11, 2001
FOR VALUE RECEIVED, each of the undersigned (each a "BORROWER" and
collectively the "BORROWERS"), severally and not jointly, and not in their
individual capacities, but on behalf of and for the benefit of the series of
funds comprising each such Borrower as listed on SCHEDULE A to the Agreement as
defined below (each a "FUND" and collectively the "FUNDS") promises to pay to
the order of BANK OF AMERICA, N.A. (the "BANK") at the Bank's office located at
000 Xxxx Xxxxxx, Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000, in lawful money of the
United States of America, in immediately available funds, the principal amount
of all Loans made by the Bank to such Borrower for the benefit of the
applicable Funds under the Facility Agreement Letter dated January 11, 2001 (as
amended or modified, the "AGREEMENT"), among the Borrowers and the Bank,
together with interest thereon at the rate or rates set forth in the Agreement.
All payments of interest and principal outstanding shall be made in accordance
with the terms of the Agreement.
This Note evidences Loans made pursuant to, and is entitled to the
benefits of, the Agreement. Terms not defined in this Note shall be as set
forth in the Agreement.
The Bank is authorized to endorse the particulars of each Loan
evidenced hereby on the attached Schedule and to attach additional Schedules as
necessary, provided that the failure of the Bank to do so or to do so
accurately shall not affect the obligations of any Borrower (or the Fund for
whose benefit it is borrowing) hereunder.
Each Borrower waives all claims to presentment, demand, protest, and
notice of dishonor. Each Borrower agrees to pay all reasonable costs of
collection, including reasonable attorney's fees in connection with the
enforcement of this Note.
The Bank hereby agrees (i) that any claim, liability, or obligation
arising hereunder or under the Agreement whether on account of the principal of
any Loan, interest thereon, or any other amount due hereunder or thereunder
shall be satisfied only from the assets of the specific Fund for whose benefit
a Loan is borrowed and in any event in an amount not to exceed the outstanding
principal amount of any Loan borrowed for such Fund's benefit, together with
accrued and unpaid interest due and owing thereon, and such Fund's share of any
other amount due hereunder and under the Agreement (as determined in accordance
with the provisions of the Agreement) and (ii) that no assets of any Fund shall
be used to satisfy any claim, liability, or obligation arising hereunder or
under the Agreement with respect to the outstanding principal amount of any
Loan borrowed for the benefit of any other Fund or any accrued and unpaid
interest due and owing thereon or such other Fund's share of any other amount
due hereunder and under the Agreement (as determined in accordance with the
provisions of the Agreement).
Neither the shareholders, trustees, officers, employees and other
agents of any Borrower or Fund shall be personally bound by or liable for any
indebtedness, liability or obligation hereunder or under the Note nor shall
resort be had to their private property for the satisfaction of any obligation
or claim hereunder.
This Note shall be governed by the laws of the state of Texas.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE(S) FOLLOW]
D-852586.4 EXHIBIT A
---------
Signature to the Master Grid Promissory Note dated January 11, 2001, by USAA
Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA
State Tax-Free Trust (not in their individual capacities, but on behalf of and
for the benefit of the series of funds set forth on Schedule A hereto) payable
to Bank of America, N.A.
USAA MUTUAL FUND, INC.,
on behalf of and for the benefit
of its series of Funds as set forth
on SCHEDULE A to the Agreement
By: /S/ XXXXXXX X. X. XXXX
---------------------------------
Xxxxxxx X. X. Xxxx, President
USAA INVESTMENT TRUST,
on behalf of and for the benefit
of its series of Funds as set forth
on SCHEDULE A to the Agreement
By: /S/ XXXXXXX X. X. XXXX
---------------------------------
Xxxxxxx X. X. Xxxx, President
USAA TAX EXEMPT FUND, INC.,
on behalf of and for the benefit
of its series of Funds as set forth
on SCHEDULE A to the Agreement
By: /S/ XXXXXXX X. X. XXXX
----------------------------------
Xxxxxxx X. X. Xxxx, President
USAA STATE TAX-FREE TRUST,
on behalf of and for the benefit
of its series of Funds as set forth
on SCHEDULE A to the Agreement
By: /S/ XXXXXXX X. X. XXXX
----------------------------------
Xxxxxxx X. X. Xxxx, President
D-852586.4 EXHIBIT A
---------
LOANS AND PAYMENT OF PRINCIPAL
This schedule (grid) is attached to and made a part of the Promissory Note
dated January 11, 2001, executed severally and not jointly by USAA MUTUAL FUND,
INC., USAA INVESTMENT TRUST, USAA TAX EXEMPT FUND, INC. AND USAA STATE TAX-FREE
TRUST (not in their individual capacities, but on behalf of and for the benefit
of the series of funds comprising each such Borrower) payable to the order of
BANK OF AMERICA, N.A.
[grid]
Date of
Loan
Borrower
and Fund
Amount of
Loan
Type of Rate and
Interest Rate on Date
of Borrowing
Amount of
Principal Repaid
Date of
Repayment
Other
Expenses
Notation
made by
D-852586.4 EXHIBIT A
---------
EXHIBIT B
---------
BANK OF AMERICA, N.A.
MASTER REVOLVING
CREDIT FACILITY AGREEMENT
BORROWER INFORMATION SHEET
BORROWERS: USAA MUTUAL FUND, INC., USAA INVESTMENT TRUST, USAA TAX
EXEMPT FUND, INC., AND USAA STATE TAX-FREE TRUST
ADDRESS FOR NOTICES AND OTHER COMMUNICATIONS TO THE BORROWERS:
0000 Xxxxxxxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000 (For Federal Express, 78240)
Attention: Xxxxxxx X. Xxxxxxxx
Senior Vice President,
Fixed Income Investments
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxx X. Xxxxxxx
Senior Vice President,
Equity Investments
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
ADDRESS FOR BORROWING AND PAYMENTS:
0000 Xxxxxxxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000 (for Federal Express, 78240)
Attention: Xxxxxxx Xxxxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 or 498-7819
Telex: 767424
INSTRUCTIONS FOR PAYMENTS TO BORROWER:
WE PAY VIA: X FED FUNDS CHIPS
---------- ----------
D-852586.4 EXHIBIT B
---------
TO: (PLEASE PLACE BANK NAME, CORRESPONDENT NAME (IF APPLICABLE),
CHIPS AND/OR FED FUNDS ACCOUNT NUMBER BELOW)
USAA MUTUAL FUND, INC.
----------------------
STATE STREET BANK AND TRUST COMPANY, BOSTON, MASSACHUSETTS
----------------------------------------------------------
ABA #000000000
USAA Aggressive Growth Fund Acct.# 0000-000-0
USAA Growth & Income Fund Acct.# 0000-000-0
USAA Income Stock Fund Acct.# 0000-000-0
USAA Short-Term Bond Fund Acct.# 0000-000-0
USAA Money Market Fund Acct.# 0000-000-0
USAA Growth Fund Acct.# 0000-000-0
USAA Income Fund Acct.# 0000-000-0
USAA Science & Technology Fund Acct.# 0000-000-0
USAA First Start Growth Fund Acct.# 0000-000-0
USAA High Yield Opportunities Fund Acct.# 0000-000-0
USAA Intermediate-Term Bond Fund Acct.# 0000-000-0
USAA Small Cap Stock Fund Acct.# 0000-000-0
USAA Nasdaq-100 Index Fund Acct.# 0000-000-0
USAA Global Titans Index Fund Acct. # 0000-000-0
USAA Capital Growth Fund Acct. # 0000-000-0
BANKERS TRUST COMPANY, NEW YORK, NEW YORK
-----------------------------------------
ABA #000000000
USAA S&P 500 Index Fund Acct.# 096699
D-852586.4 EXHIBIT B
---------
THE CHASE MANHATTAN BANK, NEW YORK, NEW YORK
--------------------------------------------
ABA #000000000
USAA Extended Market Index Fund Acct.# P83544
USAA INVESTMENT TRUST
---------------------
STATE STREET BANK AND TRUST COMPANY, BOSTON, MASSACHUSETTS
----------------------------------------------------------
ABA #000000000
USAA Cornerstone Strategy Fund Acct.# 0000-000-0
USAA Gold Fund Acct.# 0000-000-0
USAA International Fund Acct.# 0000-000-0
USAA World Growth Fund Acct.# 0000-000-0
USAA GNMA Trust Acct.# 0000-000-0
USAA Treasury Money Market Trust Acct.# 0000-000-0
USAA Emerging Markets Fund Acct.# 0000-000-0
USAA Growth and Tax Strategy Fund Acct.# 0000-000-0
USAA Growth Strategy Fund Acct.# 0000-000-0
USAA Income Strategy Fund Acct.# 0000-000-0
USAA Balanced Strategy Fund Acct.# 0000-000-0
USAA TAX EXEMPT FUND, INC.
---------------------------
STATE STREET BANK AND TRUST COMPANY, BOSTON, MASSACHUSETTS
----------------------------------------------------------
ABA #000000000
USAA Long-Term Fund Acct.# 0000-000-0
USAA Intermediate-Term Fund Acct.# 0000-000-0
USAA Short-Term Fund Acct.# 0000-000-0
D-852586.4 EXHIBIT B
---------
USAA Tax Exempt Money Market Fund Acct.# 0000-000-0
USAA California Bond Fund Acct.# 0000-000-0
USAA California Money Market Fund Acct.# 0000-000-0
USAA New York Bond Fund Acct.# 0000-000-0
USAA New York Money Market Fund Acct.# 0000-000-0
USAA Xxxxxxxx Xxxx Fund Acct.# 0000-000-0
USAA Virginia Money Market Fund Acct.# 0000-000-0
USAA STATE TAX-FREE TRUST
-------------------------
STATE STREET BANK AND TRUST COMPANY, BOSTON, MASSACHUSETTS
----------------------------------------------------------
ABA #000000000
USAA Florida Tax-Free Income Fund Acct.# 0000-000-0
USAA Florida Tax-Free Money Market Fund Acct.# 0000-000-0
D-852586.4 EXHIBIT B
---------
EXHIBIT C
---------
ADDRESS FOR THE BANK
Bank of America, N.A.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx X'Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
D-852586.4 EXHIBIT C
---------
EXHIBIT D
---------
OFFICER'S CERTIFICATE
The undersigned hereby certifies that he is the duly elected Secretary of USAA
Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA
State Tax-Free Trust and that he is authorized to execute this Certificate on
behalf of USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund,
Inc., and USAA State Tax-Free Trust. The undersigned hereby further certifies
to the following:
Any two of the following officers are duly authorized to act on behalf of USAA
Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and USAA
State Tax-Free Trust, by transmitting telephonic, electronic mail, telex, or
telecopy instructions and other communications with regard to borrowings and
payments pursuant to the Master Revolving Credit Facility Agreement with Bank
of America, N.A. The signature set opposite the name of each individual below
is that individual's genuine signature.
NAME OFFICE SIGNATURE
Xxxxxx X. Xxxxx President and CEO
USAA /S/ XXXXXX X. XXXXX
----------------------
Xxxxx Xxxxxx, Xx. Senior Vice President-
Chief Financial Officer/
Corporate Treasurer
USAA /S/ XXXXX XXXXXX XX.
----------------------
Xxxxxxx X. Xxxx Treasurer
USAA Investment Management
Company investment companies /S/ XXXXXXX X. XXXX
----------------------
Xxxxx X. XxXxxxxxx Senior Vice President-
Treasury Operations and
Assistant Treasurer
USAA /S/ XXXXX X. XXXXXXXXX
----------------------
Xxxxxx X. Xxxxx Vice President-
Enterprise Risk Management and
Assistant Treasurer
USAA /S/ XXXXXX X. XXXXX
----------------------
IN WITNESS WHEREOF, I have executed the Certificate as of this 11th day of
January, 2001.
/S/ XXXXXXX X. XXXXXX
----------------------
Xxxxxxx X. Xxxxxx
Secretary
I, Xxxxxxx X. X. Xxxx, President of USAA Mutual Fund, Inc., USAA Investment
Trust, USAA Tax Exempt Fund, Inc., and USAA State Tax-Free Trust hereby certify
that Xxxxxxx X. Xxxxxx is, and has been at all times since a date prior to the
date of this Certificate, the duly elected, qualified, and acting Secretary of
USAA Mutual Fund, Inc., USAA Investment Trust, USAA Tax Exempt Fund, Inc., and
USAA State Tax-Free Trust and that the signature set forth above is his true
and correct signature.
DATE: January 11, 2001 /S/ XXXXXXX X. X. XXXX
-----------------------------
Xxxxxxx X. X. Xxxx, President
[BANK OF AMERICA LOGO]
SUBORDINATION EXHIBIT E
Bank of America, N.A. AGREEMENT
-------------------------------------------------------------------------------
THIS IS AN AGREEMENT AMONG: DATED: January 11, 2001
-------------------------------------------------------------------------------
NAME AND ADDRESS OF LENDER NAME AND ADDRESS NAME AND ADDRESS
(INCLUDING COUNTY): OF BORROWER: OF CREDITOR:
Bank of America, N.A. USAA Mutual Fund, Inc. USAA Capital Corporation
000 Xxxx Xxxxxx XXXX Investment Trust 0000 Xxxxxxxxxxxxxx Xxxx
Xxxxxx, Xxxxxx Xxxxxx, XXXX Tax Exempt Fund, Inc. Xxx Xxxxxxx, Xxxxx 00000
Xxxxx 00000 XXXX State Tax-Free Trust
(Each on behalf of the Funds
listed on Schedule A to the
Senior Facility Agreement
defined below)
(LENDER) (CREDITOR)
0000 Xxxxxxxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000
(EACH SUCH FUND A DEBTOR)
------------------------------------------------------------------------------
1. BACKGROUND. Debtor is or may be indebted to Lender pursuant to that certain
Facility Agreement Letter dated January 11, 2001 between Debtor and Lender
("Senior Facility Agreement"). Debtor also is or may be indebted to
Creditor pursuant to that certain Facility Agreement Letter dated January
10, 2001 between Debtor and Creditor ("Subordinated Facility Agreement").
All debt (as hereinafter defined) of a Debtor under the Senior Facility
Agreement is hereinafter referred to as "senior debt" and all debt (as
hereinafter defined) of a Debtor under the Subordinated Facility Agreement
is hereinafter referred to as "subordinated debt".
2. DEFINITION OF DEBT. The term "debt" as used in the terms "senior debt" and
"subordinated debt" means all debts, obligations and liabilities, now or
hereafter existing, direct or indirect, absolute or contingent, joint or
several, secured or unsecured, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise,
irrespective of the person in whose favor such debt may originally have
been created and regardless of the manner in which such debt has been or
may hereafter be acquired by Lender or Creditor, as the case may be, and
includes all costs incurred to obtain, preserve, perfect or enforce any
security interest, lien or mortgage, or to collect any debt or to maintain,
preserve, collect and enforce any collateral, and interest on such amounts.
3. SUBORDINATION OF DEBT. Until senior debt has been paid in full, Debtor will
not pay and Creditor will not accept any payment on subordinated debt at
any time that an Event of Default (as defined in the Senior Facility
Agreement) has occurred and is continuing in respect of senior debt.
Anything of value received by Creditor on account of subordinated debt in
violation of this agreement will be held by Creditor in trust and
immediately will be turned over to Lender in the form received to be
applied by Lender on senior debt.
4. REMEDIES OF CREDITOR. Until all senior debt has been paid in full, without
Lender's permission, Creditor will not be a party to any action or
proceeding against any person to recover subordinated debt. Upon written
request of Lender, Creditor will file any claim or proof of claim or take
any other action to collect subordinated debt in any bankruptcy,
receivership, liquidation, reorganization or other proceeding for relief of
debtors or in connection with Debtor's insolvency, or in liquidation or
marshaling of Debtor's assets or liabilities, or in any probate proceeding,
and if any distribution shall be made to Creditor, Creditor will hold the
same in trust for Lender and immediately pay to Lender, in the form
received to be applied on senior debt, all money or other assets received
in any such proceedings on account of subordinated debt until senior debt
shall have been paid in full. If Creditor shall fail to take any such
action when requested by Lender, Lender may enforce this agreement or as
attorney in fact for Creditor and Debtor may take any such action on
Creditor's behalf. Creditor hereby irrevocably appoints Lender Creditor's
attorney in fact to take any such action that Lender might request Creditor
to take hereunder, and to xxx for, compromise, collect and receive all such
money and other assets and take any other action in Lender's own name or in
Creditor's name that Lender shall consider advisable for enforcement and
collection of subordinated debt, and to apply any amounts received on
senior debt.
5. MODIFICATIONS. At any time and from time to time, without Creditor's
consent or notice to Creditor and without liability to Creditor and without
releasing or impairing any of Lender's rights against Creditor or any of
Creditor's obligations hereunder, Lender may take additional or other
security for senior debt; release, exchange, subordinated or lose any
security for senior debt; release any person obligated on senior debt,
modify, amend or waive compliance with any agreement relating to senior
debt; grant any adjustment, indulgence or forbearance to, or compromise
with, any person liable for senior debt; neglect, delay, omit, fail or
refuse to take or prosecute any action for collection of any senior debt or
to foreclose upon any collateral or take or prosecute any action on any
agreement securing any senior debt.
6. SUBORDINATION OF LIENS. Creditor subordinates and makes inferior to any
security interests, liens or mortgages now or hereafter securing senior
debt all security interests, liens, or mortgages now or hereafter securing
subordinated debt. Any foreclosure against any property securing senior
debt shall foreclose, extinguish and discharge all security interests,
liens and mortgages securing subordinated debt, and any purchaser at any
such foreclosure sale shall take title to the property so sold free of all
security interest, liens and mortgages securing subordinated debt.
7. STATEMENT OF SUBORDINATION; ASSIGNMENT BY CREDITOR; ADDITIONAL INSTRUMENTS.
Debtor and Creditor will cause any instrument evidencing or securing
subordinated debt to bear upon its face a statement that such instrument is
subordinated to senior debt as set forth herein and will take all actions
and execute all documents appropriate to carry out this agreement. Creditor
will notify Lender not less than 10 days before any assignment of any
subordinated debt.
8. ASSIGNMENT BY LENDER. Lender's rights under this agreement may be assigned
in connection with any assignment or transfer of any senior debt.
9. VENUE. Debtor and Creditor agree that this agreement is performable in
the county of Lender's address set out above.
10. CUMULATIVE RIGHTS; WAIVERS. This instrument is cumulative of all other
rights and securities of the Lender. No waiver by Lender of any right
hereunder, with respect to a particular payment, shall affect or impair its
rights in any matters thereafter occurring.
11. SUCCESSORS AND ASSIGNS. This instrument is binding upon and shall inure to
the benefit of the heirs, executors, administrators, successors and assigns
of each of the parties hereto, but Creditor covenants that it will not
assign subordinated debt, or any part thereof, without making the rights
and interests of the assignee subject in all respects to the terms of this
instrument.
12. TERMINATION. This agreement shall terminate upon the termination of the
Senior Facility Agreement and repayment in full of the senior debt.
(LENDER) (EACH SUCH FUND A DEBTOR) (CREDITOR)
Bank of America, N.A. USAA Mutual Fund, Inc. USAA Capital Corporation
USAA Investment Trust
USAA Tax Exempt Fund, Inc.
USAA State Tax-Free Trust
By /S/ XXXX X'XXXXX By /S/ XXXXXXX X. X. XXXX By /S/ XXXXXXX X. XXXXXX
-------------------- ----------------------- ----------------------
Its MANAGING DIRECTOR Its PRESIDENT Its SVP-TREASURER
D-852586.4 EXHIBIT E
---------
