Exhibit (h)(20)
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CREDIT AGREEMENT
AMONG
THE GALAXY FUND,
THE GALAXY VIP FUND,
GALAXY FUND II,
VARIOUS BANKS,
DEUTSCHE BANK SECURITIES INC.
as Arranger and Syndication Agent
AND
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
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DATED AS OF DECEMBER 29, 1999
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$150,000,000
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CREDIT AGREEMENT, dated as of December 29, 1999, among The
Galaxy Fund, The Galaxy VIP Fund, and Galaxy Fund II (each a "Fund" and,
collectively, the "Funds") on behalf of the separate mutual fund portfolios
listed from time to time on Schedule I hereto under the name of the Fund of
which such portfolio is a portfolio thereof (each such portfolio a "Borrower"
and, collectively, the "Borrowers"), the Banks party hereto from time to time,
Deutsche Bank Securities Inc., as Arranger and Syndication Agent and Deutsche
Bank AG, New York Branch, as Administrative Agent (all capitalized terms used
herein and defined in Section 10 are used herein as therein defined).
W I T N E S S E T H:
WHEREAS, subject to and upon the terms and conditions herein
set forth, the Banks are willing to make available to the Borrowers the credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. AMOUNT AND TERMS OF CREDIT.
1.01 THE COMMITMENTS. (a) Subject to and upon the terms and
conditions set forth herein, each Bank severally agrees, at any time and from
time to time on and after the Effective Date and prior to the Expiry Date, upon
the request of a Borrower, to make loans (each a "Revolving Loan" and,
collectively, the "Revolving Loans") to such Borrower, which Loans (i) shall, at
the option of such Borrower, be Base Rate Loans, IBOR Loans or LIBOR Loans,
provided that except as otherwise specifically provided in Section 1.10(b), all
Loans comprising the same Borrowing shall at all times be of the same Type, (ii)
may be repaid and reborrowed in accordance with the provisions hereof, (iii)
shall not exceed for any Bank at any time outstanding, when added to such Bank's
Percentage of all then outstanding Swingline Loans, that aggregate principal
amount which equals the Commitment of such Bank at such time and (iv) shall not
exceed in the aggregate for any Borrower at any time that amount which, when
added to all Swingline Loans made by such Borrower which remain outstanding,
equals such Borrower's Borrowing Base at such time.
(b) Subject to and upon the terms and conditions set forth
herein, the Swingline Bank may, in its sole discretion, agree to make, at any
time and from time to time on and after the Effective Date and prior to the
Swingline Expiry Date, a revolving loan or revolving loans (each a "Swingline
Loan" and, collectively, the "Swingline Loans") to a Borrower, which Swingline
Loans (i) shall, at the option of the respective Borrower, be made and
maintained as Base Rate Loans or IBOR Loans, provided that notwithstanding
anything to the contrary in Section 1.09 or elsewhere in this Agreement, only
Interest Periods of one day shall be available in the case of Swingline Loans
maintained as IBOR Loans, (ii) may be repaid and reborrowed in accordance with
the provisions hereof, (iii) shall not exceed in aggregate principal amount at
any time outstanding, when combined with the aggregate principal amount of all
Revolving Loans then outstanding at such time, an amount equal to the Total
Commitment at such time (after
giving effect to any reductions to the Total Commitment on such date), (iv)
shall not exceed for any Borrower in aggregate principal amount at any time
outstanding, when combined with the aggregate principal amount of all Revolving
Loans then outstanding to such Borrower at such time, such Borrower's Borrowing
Base at such time and (v) shall not exceed in aggregate principal amount at any
time outstanding the Maximum Swingline Amount. Notwithstanding anything to the
contrary contained in this Section 1.01(b), the Swingline Bank shall not make
any Swingline Loan to any Borrower after it has received written notice from
such Borrower or the Required Banks stating that a Default or an Event of
Default exists and is continuing with respect to such Borrower until such time
as the Swingline Bank shall have received written notice (i) of rescission of
all such notices from the party or parties originally delivering such notice,
(ii) of the waiver of such Default or Event of Default by the Required Banks or
(iii) that the Agents in good faith believe that such Default or Event of
Default no longer exists.
(c) On any Business Day and in any case within five Business
Days of the making of any such Swingline Loan (provided that any failure to give
such notice within such five Business Day period shall not effect the obligation
of the respective Borrower or any other Bank to accept such notice and fund the
Revolving Loan or Revolving Loans referred to below), the Swingline Bank may, in
its sole discretion, give notice to the Banks that its outstanding Swingline
Loans shall be funded with one or more Borrowings of Revolving Loans (provided
that such notice shall be deemed to have been automatically given upon the
occurrence of a Default or an Event of Default under Section 9.05 or upon the
exercise of any of the remedies provided in the last paragraph of Section 9), in
which case one or more Borrowings of Revolving Loans constituting Base Rate
Loans (each such Borrowing, a "Mandatory Borrowing") shall be made on the
immediately succeeding Business Day from all Banks with a Commitment (without
giving effect to any reductions thereto pursuant to the last paragraph of
Section 9) PRO RATA based on each such Bank's Percentage (determined before
giving effect to any termination of the Commitments pursuant to the last
paragraph of Section 9) and the proceeds thereof shall be remitted to the
Swingline Bank and applied by the Swingline Bank to repay the Swingline Bank for
such outstanding Swingline Loans. Each such Bank hereby irrevocably agrees to
make Revolving Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by the Swingline Bank notwithstanding (i)
that the amount of the Mandatory Borrowing may not comply with the minimum
borrowing amount otherwise required hereunder, (ii) any failure to satisfy any
conditions specified in Section 5, (iii) any Default or Event of Default
existing on such date, (iv) the date of such Mandatory Borrowing and (v) the
amount of the Total Commitment at such time. In the event that any Mandatory
Borrowing cannot for any reason be made on the date otherwise required above
(including, without limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code with respect to any Borrower), then each such Bank
hereby agrees that it shall forthwith purchase (as of the date the Mandatory
Borrowing would otherwise have occurred, but adjusted for any payments received
by the Swingline Bank from the respective Borrower on or after such date and
prior to such purchase) from the Swingline Bank such participations in the
outstanding Swingline Loans as shall be necessary to cause such Banks to share
in such Swingline Loans ratably based upon their respective Percentages
(determined before giving effect to any termination of the Commitments pursuant
to the last paragraph of Section 9), provided that (x) all interest payable on
the
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Swingline Loans shall be for the account of the Swingline Bank until the date as
of which the respective participation is required to be purchased and, to the
extent attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing Bank
shall be required to pay the Swingline Bank interest on the principal amount of
the participation purchased for each day from and including the day upon which
the Mandatory Borrowing would otherwise have occurred to but excluding the date
of payment for such participation, at the overnight Federal Funds Rate for the
first three days and at the rate otherwise applicable to Revolving Loans
maintained as Base Rate Loans hereunder for each day thereafter.
1.02 MINIMUM AMOUNT OF EACH BORROWING. The aggregate principal
amount of each Borrowing of (i) Revolving Loans shall not be less than $250,000
and, if greater, shall be in an integral multiple of $100,000 (provided that any
Borrowing which is less than $500,000 shall not be permitted to be maintained
as, or converted into, a LIBOR Loan) and (ii) Swingline Loans shall not be less
than $100,000 and, if greater, shall be in an integral multiple of $100,000.
More than one Borrowing may occur on the same date, but at no time shall there
be outstanding more than five Borrowings of Fixed Rate Loans for the account of
any one Borrower.
1.03 NOTICE OF BORROWING. Whenever a Borrower desires to make
a Borrowing hereunder (excluding Mandatory Borrowings), it shall give the
Administrative Agent at its Notice Office prior notice of each desired Base Rate
Loan or IBOR Loan (which must be given prior to 12:00 Noon (New York time) (or
3:00 P.M. (New York time) in the case of Swingline Loans) if such notice is
given on the day such Borrowing is desired) and at least three Business Days'
prior notice of each desired LIBOR Loan, provided that any such notice shall be
deemed to have been given on a certain day only if given before 12:00 Noon (New
York time) (or, in the case of Swingline Loans 3:00 P.M. (New York time)) on
such day. Each such notice (each a "Notice of Borrowing") shall be given by the
respective Borrower, in the form of Exhibit A and executed by an authorized
signatory for such Borrower, appropriately completed to specify the principal
amount of the Revolving Loan to be made pursuant to such Borrowing, the date of
such Borrowing (which shall be a Business Day), the Borrower on behalf of which
such Revolving Loan is being requested, the Asset Coverage Ratio, together with
the calculations necessary to compute the Asset Coverage Ratio, of such Borrower
as of the close of business on the latest Business Day preceding the date of
such Notice of Borrowing after giving PRO FORMA effect to such Borrowing,
whether the Loan being made pursuant to such Borrowing is to be initially
maintained as a Base Rate Loan, IBOR Loan or, if such Loan is a Revolving Loan,
LIBOR Loan and, if a Revolving Loan to be maintained as a Fixed Rate Loan, the
initial Interest Period to be applicable thereto, provided that a Borrower may
provide telephonic notice to the Administrative Agent of its intent to make a
Borrowing, which telephonic notice shall be deemed effective if given within the
time required above in this Section 1.03 and promptly followed by a Notice of
Borrowing, which Notice of Borrowing shall be received by the Administrative
Agent on the day of such telephonic notice and prior to any disbursement of
funds in connection with such Borrowing. Any telephonic notice given pursuant to
the immediately preceding sentence shall be deemed to be a representation and
warranty by the Borrower giving such notice that all of the facts required to be
set forth in a Notice of Borrowing are true as of the time of the giving of such
notice. The Administrative Agent shall promptly give each Bank notice of such
proposed
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Borrowing, of such Bank's proportionate share thereof and of the other matters
required by the immediately preceding sentence to be specified in the Notice of
Borrowing.
1.04 DISBURSEMENT OF FUNDS. Except as otherwise specifically
provided in the immediately succeeding sentence, no later than 2:00 P.M. (New
York time) on the date specified in each Notice of Borrowing, each Bank will
make available its PRO RATA portion of each such Borrowing requested to be made
on such date, in Dollars and in immediately available funds at the Payment
Office of the Administrative Agent, and the Administrative Agent will make the
aggregate of the amounts so made available by the Banks available to the
appropriate Borrower at the Payment Office or, if specified in the Notice of
Borrowing, such Borrower's account with its Custodian in accordance with the
wiring instructions provided in the Notice of Borrowing. Unless the
Administrative Agent shall have been notified by any Bank prior to the date of
Borrowing that such Bank does not intend to make available to the Administrative
Agent such Bank's portion of any Borrowing to be made on such date, the
Administrative Agent may assume that such Bank has made such amount available to
the Administrative Agent on such date of Borrowing and the Administrative Agent
may, in reliance upon such assumption, make available to the respective Borrower
a corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Bank, the Administrative Agent
shall be entitled to recover such corresponding amount on demand from such Bank.
If such Bank does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the respective Borrower or Borrowers, and such Borrower shall immediately
pay (from the assets of such Borrower or Borrowers) such corresponding amount to
the Administrative Agent. The Administrative Agent shall also be entitled to
recover on demand from such Bank or the respective Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Administrative Agent to such
Borrower or Borrowers until the date such corresponding amount is recovered by
the Administrative Agent, at a rate per annum equal to (i) if recovered from
such Bank, at the overnight Federal Funds Rate and (ii) if recovered from the
respective Borrower, the rate of interest applicable to the respective
Borrowing, as determined pursuant to Section 1.08. Nothing in this Section 1.04
shall be deemed to relieve any Bank from its obligation to make Loans hereunder
or to prejudice any rights which any Borrower may have against any Bank as a
result of any failure by such Bank to make Loans hereunder.
1.05 LEDGER. Each Bank will note on its internal records the
amount of each Revolving Loan made by it (and the Swingline Bank shall note the
amount of each Swingline Loan made by it), the Borrower to whom such Loan was
made, and each payment in respect thereof, and will, prior to any transfer of
any of its interest therein, note the outstanding principal amount of Loans
(broken down by Borrower) to be so transferred. Failure to make any such
notation (or any error in such notation) shall not affect the Obligations of the
respective Borrowers in respect of such Loans.
1.06 CONVERSIONS. The Borrowers shall have the option to
convert, on any Business Day occurring on or after the Effective Date, all or a
portion equal to at least $250,000 (or at least $500,000 with respect to LIBOR
Loans and, in any event, if greater, in an integral
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multiple of $100,000) of the outstanding principal amount of a Borrowing of one
or more Types of Revolving Loans made to a particular Borrower into a Borrowing
of another Type of Revolving Loan to such Borrower, provided that (i) except as
otherwise provided in Section 1.10(b), Fixed Rate Loans may be converted into
Base Rate Loans only on the last day of an Interest Period applicable to the
Loans being converted and no such partial conversion of LIBOR Loans shall reduce
the outstanding principal amount of such LIBOR Loans made pursuant to a single
Borrowing to less than $500,000, (ii) Base Rate Loans may only be converted into
Fixed Rate Loans if no Default or Event of Default is in existence on the date
of the conversion and (iii) no conversion pursuant to this Section 1.06 shall
result in a greater number of Borrowings of Fixed Rate Loans than is permitted
under Section 1.02. Each such conversion shall be effected by the respective
Borrower giving the Administrative Agent at its Notice Office prior to 12:00
Noon (New York time) at least three Business Days' prior notice (each a "Notice
of Conversion") specifying the Revolving Loans to be so converted, the
Borrowing(s) pursuant to which such Revolving Loans were made and, if to be
converted into Fixed Rate Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall give each Bank prompt notice of any such
proposed conversion.
1.07 PRO RATA BORROWINGS. All Borrowings of Revolving Loans
under this Agreement shall be incurred from the Banks PRO RATA on the basis of
their respective Commitments. It is understood that no Bank shall be responsible
for any default by any other Bank of its obligation to make respective Loans
hereunder and that each Bank shall be obligated to make the respective Revolving
Loans provided to be made by it hereunder, regardless of the failure of any
other Bank to make its Revolving Loans hereunder.
1.08 INTEREST. (a) Each Borrower to which a Base Rate Loan is
made agrees to pay interest in respect of the unpaid principal amount of such
Base Rate Loan made to such Borrower from the date the proceeds thereof are made
available to such Borrower until the maturity thereof (whether by acceleration
or otherwise) at a rate per annum which shall be equal to the sum of the
Applicable Margin plus the Base Rate in effect from time to time.
(b) Each Borrower to which a LIBOR Loan is made agrees to pay
interest in respect of the unpaid principal amount of such LIBOR Loan made to
such Borrower from the date the proceeds thereof are made available to such
Borrower until the maturity thereof (whether by acceleration or otherwise) at a
rate per annum which shall, during each Interest Period applicable thereto, be
equal to the sum of the Applicable Margin plus the LIBOR for such Interest
Period.
(c) Each Borrower to which an IBOR Loan is made agrees to pay
interest in respect of the unpaid principal amount of such IBOR Loan made to
such Borrower from the date the proceeds thereof are made available to such
Borrower until the maturity thereof (whether by acceleration or otherwise) at a
rate per annum which shall, during each Interest Period applicable thereto, be
equal to the sum of the Applicable Margin plus the IBOR for such Interest
Period.
(d) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear
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interest at a rate per annum equal to the greater of (i) 2% per annum in excess
of the rate otherwise applicable to Revolving Loans maintained as Base Rate
Loans from time to time and (ii) the rate which is 2% in excess of the rate then
borne by such Loans, in each case with such interest to be payable on demand.
(e) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each Base Rate Loan, monthly in arrears on the first Business
Day of each month, (ii) in respect of each Fixed Rate Loan, on the last day of
each Interest Period applicable thereto and (iii) in respect of each Loan, on
any repayment or prepayment (on the amount repaid or prepaid), at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(f) Upon each Interest Determination Date, the Administrative
Agent shall determine the Fixed Rate for each Interest Period applicable to
Fixed Rate Loans and shall promptly notify the respective Borrower and the Banks
thereof. Each such determination shall, absent manifest error, be final and
conclusive and binding on all parties hereto.
1.09 INTEREST PERIODS. At the time it gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Fixed Rate Loan (in the case of the initial Interest Period applicable
thereto) or on the third Business Day prior to the expiration of an Interest
Period applicable to any such LIBOR Loan or one Business Day prior to the
expiration of an Interest Period applicable to any such IBOR Loan (in the case
of any subsequent Interest Period), the relevant Borrower shall have the right
to elect, by giving the Administrative Agent notice thereof, the interest period
(each an "Interest Period") applicable to such Fixed Rate Loan, which Interest
Period shall be (x) in the case of a LIBOR Loan, a one month period, and (y) in
the case of an IBOR Loan, a period of up to thirty days, at the option of such
Borrower, provided that: (i) all Fixed Rate Loans comprising a Borrowing shall
at all times have the same Interest Period; (ii) the initial Interest Period for
any Fixed Rate Loan shall commence on the date of Borrowing of such Revolving
Loan (including the date of any conversion thereof into a Revolving Loan of a
different Type) and each Interest Period occurring thereafter in respect of such
Revolving Loan shall commence on the day on which the next preceding Interest
Period applicable thereto expires; (iii) if any Interest Period relating to a
LIBOR Loan begins on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of such calendar month; (iv) if any Interest
Period would otherwise expire on a day which is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day, provided that
if any Interest Period for a LIBOR Loan would otherwise expire on a day which is
not a Business Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the next preceding
Business Day; (v) no Interest Period shall extend beyond the Expiry Date; and
(vi) no Interest Period may extend beyond the date upon which the Loans to such
Borrower are required to be repaid pursuant to Section 3.02(c). If, upon the
expiration of any Interest Period applicable to a Borrowing of Fixed Rate Loans,
the respective Borrower has failed to elect, or is not permitted to elect, a new
Interest Period to be applicable to such Fixed Rate Loans as provided in this
Section 1.09, such Borrower shall be deemed to have elected to convert such
Fixed Rate Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.
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1.10 INCREASED COSTS; ILLEGALITY; ETC. (a) In the event that
any Bank shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto but, with
respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the London
interbank Eurodollar market or the domestic interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
LIBOR or IBOR; or
(ii) at any time, that such Bank shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Fixed Rate Loan because of (x) any change since the date
of this Agreement in any applicable law or governmental rule,
regulation, order, guideline or request (whether or not having the
force of law) or in the interpretation or administration thereof and
including the introduction of any new law or governmental rule,
regulation, order, guideline or request, such as, for example, but not
limited to (A) a change in the basis of taxation of payment to any Bank
of the principal of or interest on the Loans or any other amounts
payable hereunder (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of such Bank,
pursuant to the laws of the jurisdiction in which it is organized or in
which its principal office or applicable lending office is located or
any subdivision thereof or therein) or (B) a change in official reserve
requirements, but, in all events, excluding reserves required under
Regulation D to the extent included in the computation of the LIBOR or
IBOR and/or (y) other circumstances since the date of this Agreement
affecting such Bank, the London interbank Eurodollar market or the
domestic interbank Eurodollar market or the position of such Bank in
either such market; or
(iii) at any time, that the making or continuance of any Fixed
Rate Loan has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Bank in good
faith with any governmental request (whether or not having force of
law) or (z) impracticable as a result of a contingency occurring after
the date of this Agreement which materially and adversely affects the
London interbank Eurodollar market or the domestic interbank Eurodollar
market;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the affected Borrower or Borrowers and, except in the case of clause
(i) above, to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other Banks) not
later than 11:00 A.M. (New York time) on the date such Borrowing was to occur.
Thereafter (x) in the case of clause (i) above, LIBOR Rate Loans and/or IBOR
Rate Loans, as the case may be, shall no longer be available until such time as
the Administrative Agent notifies the Borrowers and the Banks that the
circumstances giving rise to such notice by the Administrative Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion given by any of the
Borrowers with respect to any affected Fixed Rate Loans which have not yet
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been incurred (including by way of conversion) shall be deemed rescinded, (y) in
the case of clause (ii) above, the respective Borrowers shall pay to such Bank,
promptly upon its written demand therefor, such additional amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Bank in its sole discretion shall determine) as shall be
required to compensate such Bank for such increased costs or reductions in
amounts received or receivable hereunder (a written notice as to the additional
amounts owed to such Bank, showing the basis for the calculation thereof,
submitted to the affected Borrowers by such Bank shall, absent manifest error,
be final and conclusive and binding on all the parties hereto) and (z) in the
case of clause (iii) above, the respective Borrowers shall take one of the
actions specified in Section 1.10(b) as promptly as possible and, in any event,
within the time period required by law.
(b) At any time that any Fixed Rate Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the respective Borrower
may (and in the case of a Fixed Rate Loan affected by the circumstances
described in Section 1.10(a)(iii) shall) either (x) if the affected Fixed Rate
Loan is then being made initially or pursuant to a conversion, cancel the
respective Borrowing by giving the Administrative Agent telephonic notice
(confirmed in writing) on the same date that such Borrower was notified by the
affected Bank or the Administrative Agent pursuant to Section 1.10(a)(ii) or
(iii) or (y) if the affected Fixed Rate Loan is then outstanding, upon at least
three Business Days' written notice to the Administrative Agent, require the
affected Bank to convert such Fixed Rate Loan into a Base Rate Loan, provided
that, if more than one Bank is affected at any time, all affected Banks must be
treated the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Bank
determines that the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency, will have the effect of increasing the amount of
capital required or expected to be maintained by such Bank or any corporation
controlling such Bank based on the existence of such Bank's portion of the Total
Commitment or its obligations hereunder, then the Borrowers shall pay to such
Bank, promptly upon its written demand therefor, such additional amounts as
shall be required to compensate such Bank or such other corporation for the
increased cost to such Bank or such other corporation or the reduction in the
rate of return to such Bank or such other corporation as a result of such
increase of capital. In determining such additional amounts, each Bank will act
reasonably and in good faith and will use averaging and attribution methods
which are reasonable, provided that such Bank's determination of compensation
owing under this Section 1.10(c) shall, absent manifest error, be final and
conclusive and binding on all the parties hereto. Each Bank, upon determining
that any additional amounts will be payable pursuant to this Section 1.10(c),
will give prompt written notice thereof to the affected Borrowers, which notice
shall show the basis for calculation of such additional amounts, provided,
however, that failure to give any such notice shall not release or diminish any
obligation of the Borrowers to pay additional amounts pursuant to this Section
1.10(c) upon receipt of such notice.
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1.11 COMPENSATION. Each Borrower agrees that it shall
compensate each Bank, upon its written request (which request shall set forth
the basis for requesting such compensation), for all reasonable losses, expenses
and liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Bank to fund its Fixed Rate Loans) which such Bank may sustain
in respect of Loans made to such Borrower or a Notice of Borrowing or Notice of
Conversion delivered by such Borrower: (i) if for any reason (other than a
default by such Bank or the Administrative Agent) a Borrowing by such Borrower
of, or conversion from or into, Fixed Rate Loans does not occur on a date
specified therefor in a Notice of Borrowing or Notice of Conversion (whether or
not withdrawn by such Borrower or deemed withdrawn pursuant to Section 1.10(a)
or otherwise); (ii) if any repayment (including any repayment made pursuant to
Section 3.02 or a result of an acceleration of the Revolving Loans of such
Borrower pursuant to Section 9) or conversion of any of such Borrower's Fixed
Rate Loans occurs on a date which is not the last day of an Interest Period with
respect thereto; (iii) if any prepayment of a Fixed Rate Loan of such Borrower
is not made on any date specified in a notice of prepayment given by such
Borrower; or (iv) as a consequence of (a) any other default by such Borrower to
repay any Loan when required by the terms of this Agreement or (b) any election
made by such Borrower pursuant to Section 1.10(b).
1.12 REPLACEMENT OF BANKS. (x) If any Bank defaults in its
obligations to make Loans (a "Defaulting Bank") or (y) upon the occurrence of
any event giving rise to the operation of Section 1.10(a)(ii) and (iii), Section
1.10(c) or Section 3.04(a) with respect to any Bank which results in such Bank
charging to the Borrower increased costs materially in excess of those being
generally charged by the other Banks, the Borrower shall have the right, if no
Default or Event of Default will exist immediately after giving effect to the
respective replacement, to replace such Bank (the "Replaced Bank") with one or
more other Eligible Transferees, none of whom shall constitute a Defaulting Bank
at the time of such replacement (collectively, the "Replacement Bank")
reasonably acceptable to the Administrative Agent, provided that (i) at the time
of any replacement pursuant to this Section 1.12, the Replacement Bank shall
enter into one or more Assignment and Assumption Agreements pursuant to Section
12.04(b) pursuant to which the Replacement Bank shall acquire all of the
Commitments and outstanding Loans of the Replaced Bank and, in connection
therewith, shall pay to the Replaced Bank in respect thereof an amount equal to
the sum of (A) an amount equal to the principal of, and all accrued interest on,
all outstanding Loans together with all then unpaid interest with respect
thereof at such time and (B) an amount equal to all accrued, but theretofore
unpaid, Fees owing to the Replaced Bank pursuant to Section 2.01, and (ii) all
obligations of the Borrowers owing to the Replaced Bank (other than those
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid) shall be paid in full
to such Replaced Bank concurrently with such replacement. Upon the execution of
the respective Assignment and Assumption Agreements and the payment of amounts
referred to in clauses (i) and (ii) above, the Replacement Bank shall become a
Bank hereunder and the Replaced Bank shall cease to constitute a Bank hereunder,
except with respect to indemnification provisions under this Agreement which
shall survive as to such Replaced Bank.
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1.13 EXTENSION OF EXPIRY DATE. Not less than 60 days and not
more than 90 days prior to the Expiry Date then in effect, the Borrowers may
make a written request (the "Extension Request") to the Administrative Agent at
its Notice Office, which request the Administrative Agent shall promptly
transmit to each of the Banks, that the Expiry Date then in effect be extended
to the date which occurs 364 days after the Requested Extension Effective Date
specified by the Borrowers in the Extension Request. Each Extension Request
shall specify a date (the "Requested Extension Effective Date"), which shall be
a Business Day not earlier than 40 days after the giving of the respective
notice and not later than the Expiry Date then in effect, on which such
extension of the Expiry Date, if granted by the Banks, shall occur. Each
Extension Request shall also be accompanied by a certificate of an authorized
officer of the Borrowers stating that no Default or Event of Default has
occurred and is continuing. Each Bank, acting in its sole discretion and with no
obligation to grant any extension pursuant to this Section 1.13, shall, by
written notice to the Borrowers and the Administrative Agent, such notice to be
given within 30 days of its receipt of the relevant Extension Request, advise
the Borrowers and the Administrative Agent whether such Bank agrees to such
extension, provided that:
(a) (i) any Bank that fails to so notify the Borrowers and the
Administrative Agent shall be deemed to have elected not to grant such extension
as to itself and (ii) any extension of the Expiry Date pursuant to this Section
1.13 shall be effective on the Requested Extension Expiry Date only to those
Banks (the "Extending Banks") (and their respective Commitments) which have
consented to such extension pursuant to such Extension Request. The Expiry Date
for each Bank which does not consent to such extension pursuant to such
Extension Request (each a "Non-Extending Bank") shall be the Expiry Date as in
effect immediately before giving effect to such Extension Request. No Bank shall
be under any obligation whatsoever to consent to an Extension Request and may
refuse to extend the Expiry Date as to itself in its sole and absolute
discretion. The Administrative Agent shall notify the Borrowers and each Bank of
the effectiveness of any such extension.
(b) The Commitment of each Non-Extending Bank shall terminate
permanently and irrevocably on the Expiry Date in effect for such Bank before
giving effect to any extension of such Expiry Date pursuant to an Extension
Request to which such Bank has not consented, and the Borrower shall pay to each
Non-Extending Bank an amount equal to all Obligations then owing to such
Non-Extending Bank and such Non-Extending Bank shall thereafter cease to be a
"Bank" hereunder (except with respect to its rights under Sections 2.01, 3.04
and 12.01 and any provision of this Agreement which by its terms survives the
termination of this Agreement and its obligations under Section 12.16); PROVIDED
that, the Borrowers may at their option (i) allocate all or any portion of the
Commitment of any Non-Extending Bank to any Extending Bank or Extending Banks
which agree in their sole and absolute discretion to accept such allocation
and/or (ii) permit any Eligible Transferee acceptable to the Agents that is not
a party to this Agreement, to assume all or a portion of such Non-Extending
Bank's Commitment, in each case pursuant to one or more Assignment and
Assumption Agreements to be executed and effected in accordance with Section
12.04(b). Upon (A) the execution of such Assignment and Assumption Agreement (or
on such date specified in such Assignment and Assumption Agreement, which date
shall not be later than the Expiry Date as in effect for such Non-Extending
Bank), (B) the payment to such Non-Extending Banks of all amounts of principal,
interest, fees and other
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amounts payable to such Non-Extending Banks hereunder and (C) the delivery of
each such Assignment and Assumption Agreement to the Administrative Agent, (i)
the entire Commitment of such Non-Extending Banks shall terminate and such
Non-Extending Banks shall cease to be a "Bank" and shall cease to have any
rights or obligations hereunder (other than (x) its rights under Sections 2.01,
3.04 and 12.01 and any provision of this Agreement which by its terms survives
the termination of this Agreement and (y) its obligations under Section 12.16)
and (ii) each Extending Bank and/or new Bank which is being allocated a portion
of such Non-Extending Bank(s) commitment(s) shall succeed to such rights and
obligations of the Non-Extending Bank to the extent of the Commitment or Loans
of the Non-Extending Bank allocated to such Extending Bank and/or new Bank
(except that the Expiry Date applicable to such commitments assigned to such
Extending Bank and/or new Bank shall be the Expiry Date applicable to Extending
Banks pursuant to Section 1.13(a)(ii) above); PROVIDED, HOWEVER, that the
Commitment of each Non-Extending Bank shall in any event terminate on the Expiry
Date applicable to such Non-Extending Bank. Notwithstanding anything to the
contrary contained in this Agreement, Schedule II shall be deemed amended
without the consent of any Bank (other than a new Bank to the extent provided
herein) to reflect the new Commitments of each Extending Bank and/or new Bank
pursuant to this Section 3.03(b).
1.14 ADDITION OF NEW BORROWERS. Any Fund may from time to time
request in writing (each such request, an "Additional Borrower Request") that a
separate affiliated mutual fund portfolio which is a portfolio of such Fund be
included hereunder as an additional Borrower subject to the terms and conditions
of this Agreement (any such separate mutual fund portfolio, an "Additional
Borrower"). Such Additional Borrower Request shall be delivered to each of the
Banks and the Administrative Agent and shall include (a) a certification by an
authorized officer of such Fund that (i) the representations, warranties and
agreements of the Borrowers contained in Section 6 are true and correct as if
made on the date of such certification and on the date such Additional Borrower
becomes a Borrower hereunder and (ii) no Default or Event of Default has
occurred and is continuing or will occur as a result of such Additional Borrower
becoming a Borrower hereunder and (b) true and correct copies of the most recent
audited and unaudited financial statements of such Additional Borrower. Upon
receipt of an Additional Borrower Request each Bank shall in its sole discretion
determine whether it shall consent to such request, any such consent to be in
writing and delivered to the Administrative Agent. Failure by any Bank to
deliver such a consent within 30 days after receipt of such request shall be
deemed a refusal to consent on the part of such Bank. To the extent the
Administrative Agent receives written consents from all Banks with respect to a
particular Additional Borrower Request, the Administrative Agent shall notify
the Borrowers thereof, and such Additional Borrower shall become a Borrower
hereunder (at which time Schedule I hereto shall be deemed to be amended to
include such new Borrower) upon delivery to the Agents of (x) certified copies
of documents relating to such Additional Borrower of the type referred to in
Section 4.05 and (y) an executed counterpart hereof and/or an assumption
agreement in form satisfactory to the Administrative Agent.
1.15 REMOVAL OF BORROWERS. Any Fund may, from time to time
upon written notice to the Administrative Agent, elect to remove a Borrower
which is a portfolio of such Fund as a Borrower hereunder, provided that at such
time such removed Borrower has no Loans or
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other Obligations outstanding under this Agreement. Upon the effectiveness of
such removal, such removed Borrower shall cease to be a Borrower for all
purposes of this Agreement, except that all indemnification provisions of this
Agreement shall survive as to such removed Borrower.
SECTION 2. FEES; REDUCTIONS OF COMMITMENT.
2.01 FEES. (a) Each Borrower agrees to pay to the
Administrative Agent, for PRO RATA distribution to each Bank, its PRO RATA share
(as calculated in accordance with the last sentence of this Section 2.01(a)) of
a commitment fee (the "Commitment Fee") for the period from the Effective Date
to and including the Expiry Date (or such earlier date as the Total Commitment
shall have been terminated), computed at a rate equal to 0.10% per annum on the
daily average Total Unutilized Commitment. Accrued Commitment Fees shall be due
and payable quarterly in arrears on the fifteenth day of the month following
such quarter end (unless such day is not a Business Day, in which case such
accrued Commitment Fees shall be payable on the latest preceding Business Day)
and on the Expiry Date, or such earlier date upon which the Total Commitment is
terminated, with the allocation of such obligation among the Borrowers to be PRO
RATA according to the relevant asset size of the respective Borrowers or, upon
prior written notice to the Administrative Agent, based on such other method
acceptable to the Administrative Agent as the Investment Advisor shall determine
in compliance with the Investment Company Act.
(b) Each Borrower agrees to pay to the Agents, for the Agents'
own account, its PRO RATA share according to the relevant asset size of the
respective Borrowers (or, upon prior written notice to the Administrative Agent,
such other method of allocation acceptable to the Administrative Agent as the
Investment Advisor shall determine in compliance with the Investment Company
Act) of such other fees as have been agreed to in writing by the Borrowers and
the Agents.
2.02 VOLUNTARY TERMINATION OF UNUTILIZED COMMITMENTS;
TERMINATION OF COMMITMENTS. Upon at least three Business Days' prior notice to
the Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Banks), the Borrowers shall have
the right, at any time or from time to time, without premium or penalty, to
terminate the Total Unutilized Commitment, in whole or in part, in integral
multiples of $1,000,000 in the case of partial reductions to the Total
Unutilized Commitment, provided that each such reduction shall apply
proportionately to permanently reduce the Commitment of each Bank.
SECTION 3. PREPAYMENTS; PAYMENTS; TAXES.
3.01 VOLUNTARY PREPAYMENTS. Each Borrower shall have the right
to prepay any Loan or Loans made to such Borrower, without premium or penalty,
in whole or in part at any time and from time to time on the following terms and
conditions: (i) such Borrower shall give the Administrative Agent prior to 11:00
A.M. (New York time) at its Notice Office (x) at least one Business Day's prior
written notice (or telephonic notice promptly confirmed in writing) of its
intent to prepay Base Rate Loans or IBOR Loans and (y) at least three Business
Days' prior written notice (or telephonic notice promptly confirmed in writing)
of its intent to prepay LIBOR
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Loans, the amount of such prepayment and the Types of Loans to be prepaid, and,
in the case of Fixed Rate Loans, the Borrowing or Borrowings pursuant to which
made, which notice the Administrative Agent shall promptly transmit to each of
the Banks; (ii) each prepayment shall be in an aggregate principal amount of at
least $100,000, provided that if any partial prepayment of Fixed Rate Loans made
pursuant to any Borrowing shall reduce the outstanding Fixed Rate Loans made
pursuant to such Borrowing to an amount less than $500,000, then such Borrowing
may not be continued as a Borrowing of Fixed Rate Loans and any election of an
Interest Period with respect thereto shall have no force or effect; (iii)
prepayments of Fixed Rate Loans made pursuant to this Section 3.01 may only be
made on the last day of an Interest Period applicable thereto; and (iv) each
prepayment in respect of Loans made pursuant to a Borrowing shall be applied PRO
RATA among such Loans.
3.02 MANDATORY REPAYMENTS. (a) On any day on which the
aggregate outstanding principal amount of Loans exceeds the Total Commitment as
then in effect, the Borrowers shall prepay principal of Loans made to the
Borrowers in an aggregate amount equal to such excess, provided that, in the
event that such repayment is required as a result of a partial reduction in the
Total Commitment, (x) the allocation of such required prepayment of Loans of the
Borrowers shall be determined by the Borrowers or (y) in the absence of a
determination by the Borrowers, the Administrative Agent shall allocate such
mandatory repayments to outstanding Loans in its discretion, with an eye toward,
but no obligation to, minimize breakage costs owing pursuant to Section 1.11.
(b) On any day on which the aggregate outstanding principal
amount of Loans made to any Borrower exceeds the Borrowing Base of such Borrower
as then in effect, such Borrower shall prepay principal of such Loans equal to
such excess.
(c) On any day upon which any Borrower has had any Loans in
any principal amount outstanding for more than 45 consecutive days, such
Borrower shall repay on such day all then outstanding Loans made to such
Borrower, together with accrued interest thereon.
(d) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, all then outstanding Revolving Loans shall be
repaid in full on the Expiry Date, and all then outstanding Swingline Loans
shall be repaid on the Swingline Expiry Date.
3.03 METHOD AND PLACE OF PAYMENT. Except as otherwise
specifically provided herein, all payments under this Agreement shall be made
(or a federal reserve wire number delivered) to the Administrative Agent for the
account of the Bank or Banks entitled thereto not later than 12:00 Noon (New
York time) on the date when due and shall be made in Dollars in immediately
available funds at the Payment Office of the Administrative Agent. Whenever any
payment to be made hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
3.04 NET PAYMENTS. (a) All payments made by the Borrowers
hereunder will be made without setoff, counterclaim or other defense. Except as
provided in Section 3.04(b), all such payments will be made free and clear of,
and without deduction or withholding for, any
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present or future taxes, levies, imposts, duties, fees, assessments or other
charges of whatever nature now or hereafter imposed by any jurisdiction or by
any political subdivision or taxing authority thereof or therein with respect to
such payments (but excluding, except as provided in the second succeeding
sentence, taxes imposed on or measured by the net income or profits of a Bank
pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or applicable lending office of such
Bank is located or any subdivision thereof or therein, or any interest,
penalties or similar liabilities with respect thereto (all such non-excluded
taxes, levies, imposts, duties, fees, assessments or other charges being
referred to collectively as "Taxes"). If any Taxes are so levied or imposed,
each Borrower agrees to pay the full amount of such Taxes levied in respect of
the payments of such Borrower, and such additional amounts as may be necessary
so that every payment of all amounts due from such Borrower under this
Agreement, after withholding or deduction for or on account of any Taxes, will
not be less than the amount provided for herein. If any amounts are payable in
respect of Taxes pursuant to the preceding sentence, then the applicable
Borrower agrees to reimburse each Bank, upon the written request of such Bank,
for taxes imposed on or measured by the net income or profits of such Bank
pursuant to the laws of the jurisdiction in which such Bank is organized or in
which the principal office or applicable lending office of such Bank is located
or under the laws of any political subdivision or taxing authority of any such
jurisdiction and for any withholding of taxes such Bank shall determine are
payable by, or withheld from, such Bank in respect of such amounts so paid to or
on behalf of such Bank pursuant to the preceding sentence and in respect of any
amounts paid to or on behalf of such Bank pursuant to this sentence. Each
Borrower will furnish to the Administrative Agent, within 45 days after the date
the payment of any Taxes is due pursuant to applicable law, certified copies of
tax receipts evidencing such payment by such Borrower. Each Borrower agrees to
indemnify and hold harmless each Bank, and reimburse each Bank upon its written
request, for the amount of any Taxes so levied or imposed and paid by such Bank
in respect of payments made, or required to be made, by such Borrower.
(b) Each Bank that is not a United States person (as such term
is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes agrees to deliver to the Borrowers and the Administrative Agent, on or
prior to the Effective Date, or in case of Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.12 or 12.04
(unless the respective Bank was already a Bank hereunder immediately prior to
such assignment or transfer), upon the date of such assignment or transfer to
such Bank (i) two accurate and complete original signed copies of Internal
Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption
under an income tax treaty) (or successor forms) certifying to such Bank's
entitlement as of such date to a complete exemption from United States
withholding tax with respect to payments to be made under this Agreement or (ii)
if the Bank is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form
W-8BEN (with respect to a complete exemption under an income tax treaty)
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit F (any such certificate, a "Section 3.04(b)(ii) Certificate") and (y)
two accurate and complete original signed copies of Internal Revenue Service
Form W-8BEN (with respect to the portfolio interest exemption)(or successor
form) certifying to such Bank's entitlement to a complete exemption from United
States withholding tax with respect to
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payments of interest to be made under this Agreement. In addition, each Bank
agrees that from time to time after the Effective Date, when a lapse in time or
change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the Borrowers and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the benefits
of any income tax treaty), or Form W-8BEN (with respect to the portfolio
interest exemption) and a Section 3.04(b)(ii) Certificate, as the case may be,
and such other forms as may be required in order to confirm or establish the
entitlement of such Bank to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement, or it
shall immediately notify the Borrowers and the Administrative Agent of its
inability to deliver any such Form or Certificate, in which case such Bank shall
not be required to deliver any such Form or Certificate pursuant to this Section
3.04(b). Notwithstanding anything to the contrary contained in Section 3.04(a),
but subject to the immediately succeeding sentence, (x) the Borrowers shall be
entitled, to the extent they are required to do so by law, to deduct or withhold
income or similar taxes imposed by the United States (or any political
subdivision or taxing authority thereof or therein) from interest, fees or other
amounts payable hereunder for the account of any Bank which is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
U.S. Federal income tax purposes to the extent that such Bank has not provided
to such Borrower U.S. Internal Revenue Service Forms that establish a complete
exemption from such deduction or withholding and (y) such Borrower shall not be
obligated pursuant to Section 3.04(a) hereof to gross-up payments to be made to
a Bank in respect of income or similar taxes imposed by the United States if (I)
such Bank has not provided to such Borrower the Internal Revenue Service Forms
required to be provided to such Borrower pursuant to this Section 3.04(b) or
(II) in the case of a payment, other than interest, to a Bank described in
clause (ii) above, to the extent that such Forms do not establish a complete
exemption from withholding of such taxes. Notwithstanding anything to the
contrary contained in the preceding sentence or elsewhere in this Section 3.04
and except as set forth in Section 12.04(b), each Borrower agrees to pay any
additional amounts and to indemnify each Bank in the manner set forth in Section
3.04(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any amounts deducted or withheld by it
as described in the immediately preceding sentence as a result of any changes
that are effective after the Effective Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of income or similar Taxes.
(c) Except to the extent that the Borrowers make payments
pursuant to subsections (a) or (b) of this Section 3.04, the Borrowers will
indemnify each Bank and the Administrative Agent against, and reimburse each
upon demand for, the full amount of Taxes (including, without limitation, any
Taxes imposed by any jurisdiction on amounts payable under this Section 3.04)
incurred or paid by such Bank or the Administrative Agent (as the case may be)
or any of their respective affiliates and any liability (including penalties,
interest and expenses) arising therefrom and or with respect thereto, whether or
not such Taxes were correctly or legally asserted. Each Bank agrees, within a
reasonable time after receiving a written request from the Borrowers, to provide
the Borrowers and the Administrative Agent with such certificates as are
reasonably required, and to take such other actions as are reasonably necessary,
to claim such exemptions as such Bank may be entitled to claim in respect of all
or a portion of
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any Taxes which are otherwise required to be paid or deducted or withheld
pursuant to this Section 3.04 in respect of any payments under this Agreement.
If the Borrowers are compelled to make the additional payments required by
subsections (a) and (b) of this Section 3.04, or this subsection (c), the
Borrowers may be entitled to remove the Bank with respect to which such payment
is made in accordance with Section 1.12.
(d) Each Bank agrees that, upon the occurrence of any event
giving rise to the operation of Section 3.04 with respect to such Bank, it will,
if requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Bank) to designate another lending office for any Loans
affected by such event, PROVIDED that such designation is made on such terms
that such Bank and its lending office suffer no material economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of Section 3.04. Nothing in this Section
3.04(d) shall affect or postpone any of the obligations of the Borrowers or the
right of any Bank provided in Section 3.04. If such additional amounts cannot be
eliminated by such actions, the Borrowers may have the right to replace the
affected Bank hereunder in accordance with Section 1.12.
SECTION 4. CONDITIONS PRECEDENT TO THE EFFECTIVE DATE. The
obligation of each Bank to make Loans hereunder and the occurrence of the
Effective Date are subject to the satisfaction of each of the following
conditions:
4.01 EXECUTION OF AGREEMENT. On or prior to the Effective
Date, this Agreement shall have been executed and delivered as provided in
Section 12.10.
4.02 OFFICERS' CERTIFICATES. On the Effective Date, the
Administrative Agent shall have received certificates dated the Effective Date
signed on behalf of each of the Borrowers by any authorized officer of any Funds
of which such Borrowers are portfolios and attested to by the Secretary or any
Assistant Secretary of such Fund, in the form of Exhibit B with appropriate
insertions, together with copies of the Declaration of Trust or Agreement and
Declaration of Trust, as the case may be, and Code of Regulations or By-Laws, as
the case may be, of such Fund and the resolutions of the Funds of which the
Borrowers referred to in such certificates are portfolios, and the foregoing
shall be in form acceptable to the Administrative Agent.
4.03 OPINION OF COUNSEL. On the Effective Date, the
Administrative Agent shall have received from Drinker Xxxxxx & Xxxxx LLP,
counsel to the Funds, an opinion addressed to the Agents and each of the Banks
and dated the Effective Date covering the matters set forth in Exhibit C and
such other matters incident to the transactions contemplated herein as the
Administrative Agent may request.
4.04 PROCEEDINGS; ETC. On the Effective Date, all corporate
and legal proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Credit Documents shall
be satisfactory in form and substance to the Administrative Agent and the
Required Banks, and the Administrative Agent shall have received all information
and copies of all documents and papers, including records of corporate
proceedings, governmental approvals, good standing certificates and bring-down
telegrams, if any, which the Administrative Agent reasonably may have requested
in connection therewith,
-16-
such documents and papers where appropriate to be certified by proper corporate
or governmental authorities.
4.05 MATERIAL AGREEMENTS. On the Effective Date, there shall
have been delivered to the Administrative Agent true and correct copies,
certified as true and complete by an authorized officer of the Funds, of the
Registration Statement, the Prospectuses, the Investment Advisory Agreements,
the Custody Agreements and all other material agreements to which any of the
Funds or Borrowers is a party or subject to, and all of the foregoing
instruments shall be in form and substance satisfactory to the Administrative
Agent and shall be in full force and effect on the Effective Date.
4.06 ADVERSE CHANGE; ETC. (a) On the Effective Date, nothing
shall have occurred (and the Banks shall not have become aware of any facts or
conditions not previously known), including any change in government (domestic
or foreign) statutes, regulations, rules or policies, which the Administrative
Agent shall determine has, or could reasonably be expected to have, a material
adverse effect on the rights or remedies of the Agents or the Banks, or on the
ability of any Borrower to perform its obligations to the Agents and the Banks
under any Credit Document or which has, or could reasonably be expected to have,
a Material Adverse Effect.
(b) On or prior to the Effective Date, all necessary
governmental (domestic and foreign) and third party approvals in connection with
the transactions contemplated by the Credit Documents and otherwise referred to
therein shall have been obtained and remain in effect, and all applicable
waiting periods shall have expired without any action being taken by any
competent authority which restrains, prevents or imposes materially adverse
conditions upon the consummation of the transactions contemplated by the Credit
Documents and otherwise referred to therein. Additionally, there shall not exist
any judgment, order, injunction or other restraint issued or filed or a hearing
seeking injunctive relief or other restraint pending or notified prohibiting or
imposing materially adverse conditions upon the consummation of the transactions
contemplated by the Credit Documents or the making of any Loans.
4.07 LITIGATION. On the Effective Date, no litigation by any
entity (private or governmental) shall be pending or threatened with respect to
this Agreement or any documentation executed in connection herewith or the
transactions contemplated hereby, or which the Administrative Agent shall
determine could reasonably be expected to have a Material Adverse Effect.
4.08 FEES, ETC. On the Effective Date, the Borrowers shall
have paid to the Agents and the Banks all costs, fees and expenses (including,
without limitation, outside legal fees and expenses) payable to the Agents and
the Banks to the extent then due.
4.09 FORM FR U-1. On the Effective Date, the Administrative
Agent shall have received from the Borrowers a Form FR U-1 certificate in the
form of Exhibit E hereto, dated as of the Effective Date.
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SECTION 5. CONDITIONS PRECEDENT TO ALL LOANS. No Loan (other
than a Mandatory Borrowing which shall be made as provided in Section 1.01(c))
shall be made to any Borrower hereunder unless the following conditions are
satisfied:
5.01 NO DEFAULT; REPRESENTATIONS AND WARRANTIES. At the time
of each such Loan and also after giving effect thereto (i) there shall exist no
Default or Event of Default with respect to the Borrower receiving such Loan,
(ii) the respective Borrower shall be in full compliance with the Investment
Company Act (including, without limitation, Section 18 thereof), except such
noncompliance as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect and (iii) all representations and
warranties by or with respect to such Borrower contained herein shall be true
and correct in all material respects with the same effect as though such
representations and warranties had been made on the date of the making of such
Loan (it being understood and agreed that any representation or warranty which
by its terms is made as of a specified date shall be required to be true and
correct in all material respects only as of such specified date).
5.02 NOTICE OF BORROWING. Prior to the making of each Loan,
the Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 1.03.
The acceptance of the proceeds of each Loan shall constitute a representation
and warranty by the respective Borrower receiving such proceeds to the Banks
that all the conditions specified in Section 4 and in Sections 5.01 and 5.02 and
applicable to such Loan are satisfied as of that time. All of the certificates,
legal opinions and other documents and papers referred to in Section 4 and in
Section 5, unless otherwise specified, shall have been delivered to the
Administrative Agent at its Notice Office and shall be in form and substance
satisfactory to the Administrative Agent.
SECTION 6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In
order to induce the Banks to enter into this Agreement and to make the Loans,
each of the Borrowers makes the following representations, warranties and
agreements as to itself, all of which shall survive the execution and delivery
of this Agreement and the making of the Loans, with the incurrence of each Loan
on or after the Effective Date being deemed to constitute a representation and
warranty that the matters specified in this Section 6 are true and correct in
all material respects on and as of the Effective Date and on the date of each
such Loan:
6.01 CORPORATE STATUS. Each Borrower (i) is a portfolio of one
of the Funds, each of which is a business trust which is duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts, (ii) has the power and authority to own its property and assets
and to transact the business in which it is engaged and presently proposes to
engage and (iii) is duly qualified and is authorized to do business and is in
good standing in each jurisdiction where the ownership, leasing or operation of
its property or the conduct of its business requires such qualifications except
for failures to be so qualified which, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
6.02 POWER AND AUTHORITY. Each Borrower has the power and
authority to execute, deliver and perform the terms and provisions of each of
the Credit Documents and has taken all necessary action (or such action has been
taken on its behalf) to authorize the execution,
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delivery and performance by it of each of the Credit Documents. Each Borrower
(or the Fund of which it is a series) has duly executed and delivered each of
the Credit Documents, and each of the Credit Documents constitutes its legal,
valid and binding obligation enforceable against it in accordance with its
terms, except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law).
6.03 NO VIOLATION. Neither the execution, delivery or
performance (including the incurrence of Loans hereunder) by any Borrower of any
of the Credit Documents, nor compliance by any such Borrower with the terms and
provisions thereof, (i) will contravene any provision of any material law,
statute, rule or regulation (including, without limitation, the Investment
Company Act) or any order, writ, injunction or decree of any court or
governmental instrumentality applicable to such Borrower, (ii) will conflict
with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of any Borrower pursuant to the terms of any indenture,
mortgage, deed of trust, credit agreement or loan agreement, or any other
material agreement, contract or instrument to which such Borrower is a party or
by which it or any of its property or assets is bound or to which it may be
subject or (iii) will violate or conflict with the Investment Practices,
Prospectus, statement of additional information or any provision of the
Agreement and Declaration of Trust or Declaration of Trust, as the case may be,
or Code of Regulations or By-Laws, as the case may be, of such Borrower.
6.04 GOVERNMENTAL APPROVALS. No order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except as have been obtained or made prior to the Effective Date and which
remain in full force and effect), or exemption by, any governmental or public
body or authority, or any subdivision thereof, is required to authorize, or is
required in connection with, (i) the execution, delivery or performance by any
Borrower of any Credit Document to which it is a party or (ii) the legality,
validity, binding effect or enforceability of any such Credit Document.
6.05 FINANCIAL STATEMENTS; FINANCIAL CONDITION; UNDISCLOSED
LIABILITIES; ETC. (a) The financial statements, together with the notes and
schedules thereto, of each Borrower furnished to the Banks prior to the
Effective Date (or, if such Borrower became a party to this Agreement after the
Effective Date in accordance with Section 1.14, prior to the date such Borrower
first became a party hereto) present fairly the financial condition of each
respective Borrower at the respective dates of such statements and the results
of the operations of each respective Borrower for the period covered thereby.
All such financial statements have been prepared in accordance with generally
accepted accounting principles and practices consistently applied. As of the
Effective Date, since the respective dates of such financial statements, there
has been no material adverse change in the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of any
Borrower, the Fund of which such Borrower is a portfolio, or, to the best
knowledge of any Borrower, all of the Borrowers taken as
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a whole that would materially and adversely affect the ability of any Borrower
to perform its obligations hereunder.
(b) Except as fully disclosed in the financial statements
delivered pursuant to Section 6.05(a) and open trading and shareholder
redemption obligations incurred in the ordinary course of business, there were
as of the Effective Date no liabilities or obligations with respect to any
Borrower of any nature whatsoever (whether absolute, accrued, contingent or
otherwise and whether or not due) which, either individually or in the
aggregate, would be material to any Borrower. As of the Effective Date (or, if
such Borrower becomes a party to this Agreement after the Effective Date in
accordance with Section 1.14, the date such Borrower first becomes a party
hereto), except for open trading and shareholder redemption obligations incurred
in the ordinary course of business, no Borrower knows of any basis for the
assertion against it or any other Borrower of any liability or obligation of any
nature whatsoever that is not fully disclosed in the financial statements
delivered pursuant to Section 6.05(a) which, either individually or in the
aggregate, could be material to any Borrower.
6.06 LITIGATION. There are no actions, suits or proceedings
pending or, to the best knowledge of any Borrower after due inquiry, threatened
(i) with respect to any Credit Document or (ii) that could reasonably be
expected to have a Material Adverse Effect.
6.07 TRUE AND COMPLETE DISCLOSURE. All factual information
furnished by or on behalf of the Borrowers in writing to the Banks (including,
without limitation, all information contained in the Credit Documents) for
purposes of or in connection with this Agreement, the other Credit Documents or
any transaction contemplated herein or therein is, and all other such factual
information hereafter furnished by or on behalf of such Borrower in writing to
the Administrative Agent or any of the Banks will be, true and accurate in all
material respects on the date as of which such information is dated or certified
and not incomplete by omitting to state any fact necessary to make such
information not misleading in any material respect at such time in light of the
circumstances under which such information was provided.
6.08 USE OF PROCEEDS; MARGIN REGULATIONS. (a) The proceeds of
all Loans shall be used by the Borrower receiving such proceeds to finance
temporarily until settlement the sale or purchase of portfolio securities by
such Borrower, the repurchase or redemption of shares of such Borrower, or for
other temporary or emergency purposes consistent with the such Borrower's
Investment Practices.
(b) Neither the making of any Loan nor the use of the proceeds
thereof by any Borrower will violate or be inconsistent with the provisions of
Regulations T, U or X of the Board of Governors of the Federal Reserve System or
any other applicable regulation or agreement binding upon such Borrower.
6.09 ERISA. None of the Borrowers nor any Subsidiary of any of
the Borrowers nor any ERISA Affiliate has ever maintained or contributed to (or
had an obligation to contribute to) any Plan.
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6.10 COMPLIANCE WITH STATUTES, ETC. Each Borrower is in
compliance with (i) all applicable statutes (including, without limitation, the
Investment Company Act), regulations and orders of, and all applicable
restrictions imposed by, all governmental bodies, domestic or foreign, in
respect of the conduct of its business and the ownership of its property, except
such noncompliance as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, or any adverse effect on the
legality, validity or enforceability of this Agreement or any of the other
Credit Documents and (ii) all investment policies and restrictions set forth in
such Borrower's Prospectus, Agreement and Declaration of Trust or Declaration of
Trust, as the case may be, Code of Regulations or By-Laws, as the case may be,
and Investment Practices in all material respects.
6.11 INVESTMENT COMPANY. Each Borrower is duly registered as
an open-end management investment company or is a series thereof under the
Investment Company Act, and such registration has not been revoked or rescinded
and is in full force and effect.
6.12 INVESTMENT ADVISER. The Investment Adviser is the sole
investment advisor to each of the Borrowers and is duly registered as an
investment adviser under the Investment Advisers Act, provided that, when not
prohibited by law or regulation or by any other restriction (contractual or
otherwise), and so long as no Default or Event of Default exists or would result
therefrom, upon prior written notice to the Administrative Agent, the Investment
Advisor may delegate certain of its duties to third party investment advisors
which are also duly registered under the Investment Advisors Act.
6.13 AFFILIATION WITH THE BANKS. No Borrower or any Affiliated
Person of such Borrower is an Affiliated Person of any Bank.
6.14 SENIOR STATUS. Except to the extent secured by Liens
permitted by Section 8.01, the Indebtedness of each Borrower hereunder ranks
PARI PASSU with all other senior Indebtedness of such Borrower.
6.15 TAX RETURNS AND PAYMENTS. Each Borrower has filed all
federal income tax returns and all other material tax returns, domestic and
foreign, required to be filed by it and has paid all material taxes and
assessments payable by it which have become due, except for those contested in
good faith and adequately disclosed and fully provided for on the financial
statements of the Borrowers in accordance with generally accepted accounting
principles. The Borrowers have at all times paid, or have provided adequate
reserves (in the good faith judgment of the management of the Borrowers) for the
payment of, all federal, state and foreign income taxes applicable for all prior
fiscal years and for the current fiscal year to date. There is no material
action, suit, proceeding, investigation, audit, or claim now pending or, to the
knowledge of the Borrowers, threatened by any authority regarding any taxes
relating to the Borrowers. The Borrowers have not entered into an agreement or
waiver or been requested to enter into an agreement or waiver extending any
statute of limitations relating to the payment or collection of taxes of the
Borrowers, or is aware of any circumstances that would cause the taxable years
or other taxable periods of the Borrowers not to be subject to the normally
applicable statute of limitations.
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SECTION 7. AFFIRMATIVE COVENANTS. Each Borrower covenants and
agrees that on and after the Effective Date and until the Commitments have
terminated and the Loans, together with interest, Fees and all other Obligations
incurred hereunder, are paid in full:
7.01 INFORMATION COVENANTS. The Funds will deliver, or cause
to be delivered, to each Bank:
(a) SEMI-ANNUAL AND ANNUAL FINANCIAL STATEMENTS. Within 75
days after the close of each semi-annual and annual accounting period in each
fiscal year of each Borrower, a statement of assets and liabilities and a
statement of operations as of the end of such accounting period, in each case
with respect to such Borrower and setting forth comparative figures applicable
for the related periods in the prior fiscal year, all of which shall be
certified by an officer of the Fund of which the relevant Borrower is a
portfolio, subject to normal year-end audit adjustments, together with, in the
case of annual statements, a certification by an independent certified public
accountant of recognized standing stating that its regular audit was conducted
in accordance with generally accepted audit standards.
(b) OFFICER'S CERTIFICATES. At the time of the delivery of the
financial statements provided for in Section 7.01(a), a certificate of an
officer of the Fund of which the relevant Borrower is a portfolio to the effect
that the representations and warranties by or with respect to such Borrower are
true and correct in all material respects and no Default or Event of Default has
occurred and is continuing or, if any Default or Event of Default has occurred
and is continuing, specifying the nature and extent thereof.
(c) NOTICE OF DEFAULT OR LITIGATION. Promptly, and in any
event within three Business Days after any executive officer of the Fund of
which the relevant Borrower is a portfolio obtains knowledge thereof, notice of
(i) the occurrence of any event which constitutes a Default or an Event of
Default or (ii) any litigation or governmental investigation or proceeding
pending (A) against such Borrower which could reasonably be expected to have a
Materially Adverse Effect or (B) with respect to any Credit Document.
(d) ERISA REPORTS. As soon as possible and, in any event,
within ten (10) days after any Borrower knows or has reason to know of the
occurrence of any of the following, such Borrower will deliver to each of the
Banks a certificate of an executive officer of such Borrower setting forth the
full details as to such occurrence and the action, if any, that the Borrower or
its ERISA Affiliates are required or propose to take, together with any notices
required or proposed to be given to or filed with or by such Borrower, a Defined
Contribution Plan participant or the Defined Contribution Plan administrator
with respect thereto: (i) that any contribution required to be made with respect
to a Defined Contribution Plan has not been timely made; (ii) that such Borrower
will or may incur any liability with respect to a Defined Contribution Plan
under Section 4975 of the Code or Section 409, 502(i) or 502(l) of ERISA; or
(iii) that such Borrower may incur any material liability pursuant to any
Defined Contribution Plan.
(e) OTHER REPORTS AND FILINGS. Promptly, copies of all
financial information, proxy materials, Prospectuses, Registration Statements
and other information and reports
-22-
(including without limitation all information, material and reports filed or
distributed pursuant to Section 30 of the Investment Company Act) which the
Borrowers shall deliver to their shareholders.
(f) OTHER INFORMATION. From time to time, such other
information or documents (financial or otherwise) with respect to a Borrower
(including, without limitation, the investments of such Borrower) as any Bank
may reasonably request in writing through the Administrative Agent.
7.02 BOOKS, RECORDS AND INSPECTIONS. Each Fund of which the
relevant Borrower is a portfolio will keep proper books of record and account
with respect to its operations in which full, true and correct entries in
conformity with generally accepted accounting principles and all requirements of
law shall be made of all dealings and transactions in relation to the business
and activities of such Borrower. Each Fund will permit officers and designated
representatives of the Administrative Agent or any Bank to visit and inspect,
under guidance of officers of such Fund, any of the properties of such Borrower,
and to examine the books of account of such Borrower and discuss the affairs,
finances and accounts of such Borrower with, and be advised as to the same by,
its respective officers, portfolio managers and independent accountants, all at
such reasonable times and intervals and (to the extent permitted in the context
of such inspection) upon reasonable notice and to such reasonable extent as the
Administrative Agent or such Bank may request; provided, that, unless a Default
or an Event of Default shall have occurred and be continuing, the Administrative
Agent shall provide such Fund with five Business Days' prior notice of such
visit and only one such visit shall be made each year.
7.03 COMPLIANCE WITH STATUTES; ETC. Each Borrower will comply
with (i) all applicable statutes (including, without limitation, the Investment
Company Act), regulations and orders of, and all applicable restrictions imposed
by, all governmental bodies (including the SEC), domestic or foreign, in respect
of the conduct of its business and the ownership of its property, except such
noncompliance as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, or any adverse effect on the
legality, validity or enforceability of this Agreement or any of the other
Credit Documents and (ii) all investment policies and restrictions set forth in
such Borrower's Prospectus, Agreement and Declaration of Trust or Declaration of
Trust, as the case may be, Code of Regulations or By-Laws, as the case may be,
and Investment Practices in all material respects.
7.04 INVESTMENT COMPANY. Each Borrower will at all times (i)
be a portfolio of a registered, open-end management investment company under the
Investment Company Act and (ii) qualify and be treated as a regulated investment
company under the Code.
7.05 COMPLIANCE WITH INVESTMENT PRACTICES. Each Borrower will
at all times comply in all material respects with the investment policies and
restrictions set forth in its respective Investment Practices.
7.06 COMPLIANCE WITH REGULATION U. Upon the request of any
Bank, each Borrower will furnish to any Bank such information as such Bank may
reasonably require to determine compliance by such Borrower with Regulation U.
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7.07 USE OF PROCEEDS. All proceeds of the Loans shall be used
as provided in Section 6.08(a).
7.08 PAYMENT OF TAXES. Each Borrower will pay and discharge
all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits, or upon any properties belonging to it, prior to the
date on which penalties attach thereto, and all lawful claims for sums that have
become due and payable which, if unpaid, might become a Lien not otherwise
permitted under Section 8.01(i); PROVIDED, that each Borrower shall not be
required to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings if it has maintained adequate
reserves with respect thereto in accordance with generally accepted accounting
principles.
SECTION 8. NEGATIVE COVENANTS. Each Borrower covenants and
agrees that on and after the Effective Date and until the Commitments have
terminated and the Loans, together with interest, Fees and all other Obligations
incurred by such Borrower hereunder are paid in full:
8.01 LIENS. Such Borrower will not create, incur, assume or
suffer to exist any Lien upon or with respect to any of its property or assets
(real or personal, tangible or intangible, including portfolio securities),
whether now owned or hereafter acquired, or sell any such property or assets
subject to an understanding or agreement, contingent or otherwise, to repurchase
such property or assets, assign any right to receive income or permit the filing
of any financing statement under the UCC or any other similar notice of Lien
under any similar recording or notice statute or execute any control agreement
with respect to any of its property or assets; provided that the provisions of
this Section 8.01 shall not prevent the creation, incurrence, assumption or
existence of the following (Liens described below are herein referred to as
"Permitted Liens"):
(i) inchoate Liens for taxes, assessments or governmental
charges or levies not yet due or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been
established in accordance with generally accepted accounting
principles;
(ii) Liens in respect of property or assets of a Borrower
imposed by law, which were incurred in the ordinary course of business
and do not secure Indebtedness for borrowed money, such as carriers',
warehousemen's, materialmen's, mechanics', brokers' and custodians'
liens and other similar Liens arising in the ordinary course of
business and (a) which do not in the aggregate materially detract from
the value of such Borrower's property or assets or materially impair
the use thereof in the operation of the business of such Borrower or
(b) which are being contested in good faith by appropriate proceedings,
which proceedings have the effect of preventing the forfeiture or sale
of the property or assets subject to any such Lien;
(iii) Hedging Agreements and Liens in respect thereof;
(iv) Liens incurred by a Borrower in favor of such Borrower's
Custodian;
-24-
(v) Liens incurred by a Borrower in the ordinary course of
business in connection with portfolio investments to the extent such
Liens are permitted by the provisions of such Borrower's Prospectus;
and
(vi) Liens to secure surety and appeal bonds, provided that
such Liens do not secure assets of any Borrower with an aggregate value
greater than the lesser of (x) 1.0% of the Asset Coverage Numerator of
such Borrower and (y) $10,000,000.
8.02 CONSOLIDATION, MERGER, SALE OR PURCHASE OF ASSETS, ETC.
Such Borrower will not wind up, liquidate or dissolve its affairs or enter into
any transaction of merger or consolidation, or convey, sell, lease or otherwise
dispose of all or substantially all of its property or assets, or enter into any
sale-leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) all or substantially all of the property or
assets of any Person (or agree to do any of the foregoing at any future time)
without the consent of the Required Banks (which consent shall not be
unreasonably withheld), except:
(i) any Borrower may merge with or into another Borrower so
long as the surviving Borrower assumes all of the Obligations
(including, without limitation, all indemnity obligations) of such
non-surviving Borrower;
(ii) any Borrower may sell its assets and purchase
investments, in each case in the ordinary course of business as
described in such Borrower's Prospectus; and
(iii) the Funds may acquire all of the assets and assume all
of the liabilities of the Boston 1784 Funds in a tax-free
reorganization, so long as:
(a) no Default or Event of Default is in effect;
(b) no Default or Event of Default occurs as a
result of such reorganization; and
(c) no investments, assets or liabilities acquired or
assumed by any Borrower violates, amends or modifies such Borrower's
Investment Practices.
8.03 INDEBTEDNESS. Such Borrower will not contract, create,
incur, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(ii) accrued expenses, deferred taxes and current trade
accounts payable, in each case incurred in the ordinary course of
business;
(iii) Indebtedness not to exceed $1,000,000 in aggregate
principal amount at any one time outstanding in favor of such
Borrower's Custodian consisting of extensions of credit from the
Custodian in the ordinary course of business;
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(iv) Indebtedness in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal
so long as judgments or awards do not constitute an Event of Default
and so long as execution is not levied thereunder or in respect of
which such Borrower (A) shall at the time in good faith be prosecuting
an appeal or proceedings for review and in respect of which a stay of
execution shall have been obtained pending such appeal or review or (B)
shall have obtained a performance bond, which performance bond shall,
except to the extent permitted by Section 8.01(vi), be unsecured, and
Indebtedness in respect of such performance bond; and
(v) Indebtedness (other than Indebtedness for borrowed money)
arising in connection with any other transaction permissible under the
Investment Company Act and such Borrower's investment objectives and
fundamental investment restrictions, including, but not limited to,
Reverse Repurchase Agreements, mortgage dollar rolls, delayed delivery
transactions (provided that the assets with respect thereto are
segregated), when-issued securities (provided that the assets with
respect thereto are segregated) and loans from other Borrowers or any
other Borrower.
Notwithstanding anything to the contrary contained in this Agreement, in no
event shall any Borrower contract, create, incur, assume or suffer to exist any
Senior Securities other than the Loans pursuant to this Agreement.
8.04 RESTRICTIONS ON ISSUANCE OF CAPITAL STOCK. Such Borrower
will not issue any preferred stock.
8.05 MODIFICATIONS OF INVESTMENT PRACTICES, GOVERNING
DOCUMENTS, AND CERTAIN OTHER AGREEMENTS. Without the consent of the Required
Lenders, such Borrower will not amend or modify, or permit the amendment or
modification of, (i) such Borrower's Investment Practices, (ii) such Borrower's
Agreement and Declaration of Trust or Declaration of Trust, as the case may be,
(including, without limitation, by the filing or modification of any certificate
of designation or similar document) or Code of Regulations or By-Laws, as the
case may be, or any agreement entered into by such Person with respect to its
capital stock (to the extent adverse to the interests of the Banks), or enter
into any new agreement with respect to such Person's capital stock (to the
extent adverse to the interests of the Banks) or (iii) the Investment Advisory
Agreement or the Custody Agreements other than any amendments or modifications
pursuant to this clause (iii) which are not in any way adverse to the interests
of the Banks.
8.06 BUSINESS. Such Borrower will not engage (directly or
indirectly) in any business other than the business in which such Borrower is
engaged on the Effective Date.
8.07 ERISA. Neither such Borrower or any Subsidiary of such
Borrower nor any ERISA Affiliate of such Borrower will maintain or contribute to
(or have an obligation to contribute to) a Plan.
8.08 AFFILIATED PERSON. Neither such Borrower nor any
Affiliated Person of such Borrower will directly or indirectly own, control or
hold with power to vote 5% or more of the
-26-
outstanding voting securities of (or otherwise be or become an Affiliated Person
of) any Agent or any Bank.
8.09 ASSET COVERAGE RATIO. Such Borrower will not at any time
permit its Asset Coverage Ratio to be less than 3:1 or such greater ratio as
provided in such Borrower's Prospectus.
SECTION 9. EVENTS OF DEFAULT. If at any time any of the
following specified events (each an "Event of Default") shall be in effect with
respect to a Borrower:
9.01 PAYMENTS. Such Borrower shall (i) default in the payment
when due of any principal of any Loan other than payments required solely as a
result of the operation of Section 3.02(b), (ii) default, and such default shall
continue unremedied for three or more Business Days, in the repayment of
principal required solely as a result of the operation of Section 3.02(b) or
(iii) default, and such default shall continue unremedied for three or more
Business Days, in the payment when due of any interest on any Loan, or any Fees
or any other amounts owing under this Agreement or with respect to any Loan
other than as covered above in clauses (i) and (ii); or
9.02 REPRESENTATIONS; ETC. Any representation, warranty or
statement made by such Borrower herein or in any other Credit Document or in any
certificate delivered pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made; or
9.03 COVENANTS. Such Borrower shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 7.01(c), 7.04, 7.05, 7.07 or Section 8 or (ii) default in the due
performance or observance by it of any other term, covenant or agreement
contained in this Agreement and such default shall continue unremedied for a
period of 30 days after written notice to such Borrower by the Administrative
Agent or any Bank; or
9.04 DEFAULT UNDER OTHER AGREEMENTS. Such Borrower shall (i)
default in any payment of any Indebtedness (other than the Obligations) having
an aggregate principal amount in excess of the lesser of (x) 3% of such
Borrower's net asset value (determined in accordance with the Investment Company
Act) and (y) $5,000,000, beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or (ii)
default in the observance or performance of any agreement or condition relating
to any such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause (determined without regard to whether
any notice is required), any such Indebtedness to become due prior to its stated
maturity;
9.05 BANKRUPTCY; ETC. Such Borrower or the Fund of which such
Borrower is a portfolio shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy", as now or hereafter in
effect, or any successor thereto (the "Bankruptcy Code"); or an involuntary case
is commenced against any such Borrower or such
-27-
Fund, and the petition is not controverted within 10 days, or is not dismissed
within 60 days, after commencement of the case; or a custodian (as defined in
the Bankruptcy Code) is appointed for, or takes charge of, all or substantially
all of the property of such Borrower or such Fund, or such Borrower or such Fund
commences any other proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to such
Borrower or such Fund, or there is commenced against such Borrower or such Fund
any such proceeding which remains undismissed for a period of 60 days, or such
Borrower or such Fund is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or such
Borrower or such Fund suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue undischarged or unstayed
for a period of 60 days; or such Borrower or such Fund makes a general
assignment for the benefit of creditors; or any action is taken by such Borrower
or such Fund for the purpose of effecting any of the foregoing; or
9.06 JUDGMENTS. One or more judgments or decrees shall be
entered against such Borrower (whether or not other Borrowers are parties
thereto) involving a liability (not paid or fully covered by a reputable and
solvent insurance company) in the aggregate amount of $500,000 and such
judgments and decrees either shall be final and non-appealable or shall not be
vacated, discharged or stayed or bonded pending appeal for any period of 30
consecutive days; or
9.07 INVESTMENT ADVISER. (i) The Investment Adviser shall
cease to be such Borrower's primary investment adviser or (ii) any Investment
Advisory Agreement shall cease to be in full force and effect or the Investment
Adviser shall deny or disaffirm any material obligations to be performed by it
under any Investment Advisory Agreement or shall default in the performance of
any of its obligations thereunder; or
9.08 CUSTODY AGREEMENT. Any Custody Agreement shall cease to
be in full force and effect, or the Fund of which such Borrower is a portfolio
or the Custodian shall have given notice, pursuant to any Custody Agreement, of
the termination of such Custody Agreement, except in either case to the extent
the Banks have received prior notice of the appointment of a successor custodian
that is a bank or trust company organized under the laws of the U.S. having
assets under custody of at least $10,000,000,000 and a long-term debt rating of
not less than A from a recognized rating organization and such successor
Custodian has entered into an agreement that is in all material respects the
same as such Custody Agreement immediately prior to the termination thereof or
otherwise in form and substance satisfactory to the Administrative Agent; then,
and in any such event, and at any time thereafter, if any Event of Default shall
then be continuing, the Administrative Agent, upon the written request of the
Required Banks, shall by written notice to the Fund of which such Borrower is a
portfolio, take any or all of the following actions, without prejudice to the
rights of the Administrative Agent or any Bank to enforce its claims against
such Borrower (provided, that, if an Event of Default specified in Section 9.05
shall occur, the result which would occur upon the giving of written notice by
the Administrative Agent to such Borrower as specified in clauses (i) and (ii)
below shall occur automatically without the giving of any such notice): (i)
declare the Total Commitment with respect to such Borrower terminated,
whereupon the Total Commitment with respect to such
-28-
Borrower shall forthwith terminate immediately and any accrued but unpaid
Commitment Fee owing by such Borrower shall forthwith become due and payable
without any other notice of any kind; and (ii) declare the principal of and any
accrued interest in respect of all Loans, and all other Obligations owing from
such Borrower hereunder to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers.
SECTION 10. Definitions and Accounting Terms.
10.01 DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Additional Borrower" shall have the meaning provided in
Section 1.14.
"Additional Borrower Request" shall have the meaning provided
in Section 1.14.
"Administrative Agent" shall mean Deutsche Bank AG, acting
through its New York Branch, in its capacity as Administrative Agent.
"Affiliated Person" shall have the meaning provided in the
Investment Company Act.
"Agents" shall mean, collectively, the Administrative Agent
and the Arranger and the Syndication Agent.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented or amended from time to time.
"Applicable Margin" shall mean (i) in the case of Loans
maintained as Base Rate Loans, 0% and (ii) in the case of Loans maintained as
Fixed Rate Loans, 0.50%.
"Arranger" shall mean Deutsche Bank Securities Inc., in its
capacity as Arranger.
"Asset Coverage Denominator" shall mean, at any time with
respect to any Borrower, the aggregate amount of Senior Securities (including in
any event all Loans hereunder) representing Indebtedness of such Borrower at
such time, determined in accordance with Section 18 of the Investment Company
Act.
"Asset Coverage Numerator" shall mean, at any time with
respect to any Borrower, the total value of the investments and other assets of
such Borrower, less all liabilities and Indebtedness of such Borrower not
represented by Senior Securities, all determined in accordance with Section 18
of the Investment Company Act, provided that for purposes of this Agreement (i)
in no event shall the total value of the investments and other assets of such
Borrower as so calculated exceed such total value as would be determined in
computing net asset value as described in the relevant Prospectus and (ii) in no
event shall the liabilities and Indebtedness (other than Senior Securities) of
such Borrower be less than the respective
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liabilities attributed to such Borrower for purposes of calculating net asset
value as described in such Borrower's Prospectus.
"Asset Coverage Ratio" shall mean, at any time with respect to
any Borrower, the ratio of the Asset Coverage Numerator for such Borrower at
such time to the Asset Coverage Denominator for such Borrower at such time.
"Assignment and Assumption Agreement" shall mean an Assignment
and Assumption Agreement substantially in the form of Exhibit D (appropriately
completed).
"Bank" shall mean each financial institution listed on
Schedule II, as well as any Person which becomes a "Bank" hereunder pursuant to
Section 12.04(b).
"Bankruptcy Code" shall have the meaning provided in Section
9.05.
"Base Rate" at any time shall mean the higher of (i) 0.50% in
excess of the Federal Funds Rate and (ii) the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan designated or deemed
designated as such by the respective Borrower at the time of the incurrence
thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean and include the borrowing of one Type
of Loan from all the Banks on a given date (or resulting from a conversion or
conversions on such date) having in the case of Fixed Rate Loans the same
Interest Period, provided that Base Rate Loans incurred pursuant to Section
1.10(b) shall be considered part of the related Borrowing of Fixed Rate Loans.
"Borrowing Base" shall mean, at any time for each Borrower, an
amount equal to the lesser of (i) 33 1/3% of the total current market value of
the total assets contained in such Borrower's portfolio, determined daily
according to independent pricing sources and (ii) any explicit maximum borrowing
amount then specified by such Borrower's Prospectus.
"Boston 1784 Funds" shall mean the Boston 1784 Funds a
Massachusetts business trust, and each of the following portfolios of such
trust: Tax-Free Money Market Fund, U.S. Treasury Money Market Fund, Prime Money
Market Fund, Short-Term Income Fund, Income Fund, U.S. Government Medium-Term
Income Fund, Rhode Island Tax-Exempt Income Fund, Asset Allocation Fund, Growth
and Income Fund, Growth Fund, International Equity Fund, Institutional U.S.
Treasury Money Market Fund, Institutional Prime Money Market Fund, Tax-Exempt
Medium-Term Income Fund, Connecticut Tax-Exempt Income Fund, Massachusetts
Tax-Exempt Income Fund, Florida Tax-Exempt Income Fund.
"Business Day" shall mean (i) for all purposes other than as
covered by clauses (ii) and (iii) below, any day except Saturday, Sunday and any
day which shall be in New York
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City or Boston a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close, (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Fixed Rate Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
banks in the domestic or London (as the case may be) interbank Eurodollar market
and (iii) with respect to the Asset Coverage Ratio information required to be
delivered in each Notice of Borrowing, any day on which the respective
Borrower's net asset value is required to be calculated in accordance with its
Prospectus as in effect on the Effective Date.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
date of this Agreement and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
"Commitment" shall mean, for each Bank, the amount set forth
opposite such Bank's name in Schedule II directly below the column entitled
"Commitment," as same may be (i) reduced from time to time pursuant to Sections
2.02 and/or 9 or (ii) adjusted from time to time as a result of assignments to
or from such Bank pursuant to Section 12.04(b).
"Commitment Fee" shall have the meaning provided in Section
2.01(a).
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, lease, dividend or other obligation ("primary obligations") of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (a) for the purchase or payment of any such primary obligation or
(b) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency 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 such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Credit Documents" shall mean this Agreement and any other
documents executed and delivered in connection herewith.
"Credit Event" shall mean the making of a Loan.
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"Custodian" shall mean The Chase Manhattan Bank or any
successor Custodian appointed pursuant to the requirements of Section 9.08.
"Custody Agreements" shall mean the custody agreements listed
on Schedule IV hereto, as amended from time to time in accordance with the terms
hereof and thereof and any similar agreements with any successor Custodian to
the extent such agreements meet the requirements of Section 9.08.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defined Contribution Plan" shall mean any pension plan as
defined in Section 3(34) of ERISA, which is maintained or contributed to by (or
to which there is an obligation to contribute) the Investment Advisor or any
Borrower.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States.
"Effective Date" shall have the meaning provided in Section
12.10.
"Eligible Transferee" shall mean and include any bank (as
defined in the Investment Company Act) that is a domestic bank (including the
domestic branch of a foreign bank); provided, that no Affiliated Person of any
Borrower and no Affiliated Person of such an Affiliated Person of any Borrower
shall be an Eligible Transferee.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with any Borrower or any Subsidiary of
such Borrower would be deemed to be a "single employer" (i) within the meaning
of Section 414(b),(c), (m) or (o) of the Code or (ii) as a result of any
Borrower or any Subsidiary of such Borrower being or having been a general
partner of such person.
"Event of Default" shall have the meaning provided in Section
9.
"Expiry Date" shall mean December 27, 2000 or such date to
which the Expiry Date may be extended in accordance with Section 1.13 of this
Agreement.
"Extending Bank" shall have the meaning provided in Section
1.13.
"Extension Request" shall have the meaning provided in Section
1.13.
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"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 2.01.
"Fixed Rate Loan" shall mean collectively IBOR Loans and LIBOR
Loans.
"Form FR U-1" shall mean a Form FR U-1 certificate
substantially in the form of Exhibit E (appropriately completed).
"Fund" shall have the meaning provided in the first paragraph
of this Agreement.
"Hedging Agreement" shall mean any financial futures
contracts, agreement to purchase and sell (or write) exchange listed or
over-the-counter put and call options on securities, fixed income indices and
securities indices, Interest Rate Protection Agreements, foreign exchange
contracts, currency swap agreements or other similar agreements or arrangements,
Repurchase Agreements, Reverse Repurchase Agreements or any other securities or
financial instruments or arrangements with a leveraging effect created in the
ordinary course of the investment process or operations of any Borrower to the
extent permitted by such Borrower's Investment Practices.
"IBOR" shall mean (i) the average of the offered quotations to
the Administrative Agent in the domestic interbank Eurodollar market for Dollar
deposits of amounts in immediately available funds comparable to the principal
amount of the IBOR Loan of the Administrative Agent for which an interest rate
is then being determined with maturities comparable to the Interest Period to be
applicable to such IBOR Loan determined as of 12:00 Noon (New York time) on the
date which is the commencement of such Interest Period, divided (and rounded
upward to the next whole multiple of 1/16 of 1%) by (ii) a percentage equal to
100% minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves required by applicable law) applicable to any member bank of the
Federal Reserve system in respect of Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D).
"IBOR Loan" shall mean each Loan designated as such by the
respective Borrower at the time of the incurrence thereof or conversion thereto
bearing interest at the rates provided in Section 1.08(c).
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money
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or for the deferred purchase price of property or services, (ii) the face amount
of all letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iii) all Indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi), (vii) or (viii) of this
definition secured by any Lien on any property owned by such Person, whether or
not such Indebtedness has been assumed by such Person, (iv) the aggregate amount
required to be capitalized under leases under which such Person is the lessee,
(v) all obligations of such person to pay a specified purchase price for goods
or services, whether or not delivered or accepted, I.E., take-or-pay and similar
obligations, (vi) all Contingent Obligations of such Person, (vii) borrowings of
securities by such Person and (viii) all obligations under any Hedging Agreement
or under any similar type of agreement.
"Interest Determination Date" shall mean, (i) with respect to
any LIBOR Loan, the second Business Day prior to the commencement of any
Interest Period relating to such LIBOR Loan and (ii) with respect to any IBOR
Loan, the Business Day which is the first day of any Interest Period relating to
such IBOR Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Interest Rate Protection Agreement" shall mean any interest
rate swap agreement, interest rate cap agreement, interest collar agreement,
interest rate hedging agreement or other similar agreement or arrangement.
"Investment Adviser" shall mean Fleet Investment Advisors Inc.
or an affiliate thereof and Xxxxxxx International Advisors, LLC.
"Investment Advisers Act" shall mean the Investment Advisers
Act of 1940, as amended, including the rules and regulations promulgated
thereunder.
"Investment Advisory Agreement" shall mean the Investment
Advisory Agreements, listed on Schedule V hereto.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended, including the rules and regulations promulgated thereunder.
"Investment Practices" shall mean the investment objectives
and fundamental investment policies and restrictions of a respective Borrower as
set forth in such Borrower's Prospectus.
"LIBOR" shall mean with respect to each Interest Period for a
LIBOR Loan, (i) the offered rate (rounded upward to the nearest 1/16 of one
percent) for deposits of Dollars for a period equivalent to such Interest Period
at or about 11:00 A.M. (London time) on the second Business Day before the first
day of such Interest Period that is displayed on Telerate page 3750 (British
Bankers' Association Interest Settlement Rates) (or such other page as may
replace such page 3750 on such system or on any other system of the information
vendor for the time being designated by the British Bankers' Association to
calculate the BBA Interest Settlement Rate (as defined in the British Bankers'
Association's Recommended Terms and Conditions ("BBAIRS"
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terms) dated August 1985)), provided that if on such date no such rate is so
displayed, the Eurodollar Rate for such period shall be the rate quoted to the
Administrative Agent as the offered rate for deposits of Dollars in an amount
approximately equal to the amount in relation to which LIBOR is to be determined
for a period equivalent to such period by prime banks in the London interbank
market at or about 11:00 A.M. (London time) on the second Banking Day before the
first day of such period, divided (and rounded upward to the next whole multiple
of 1/16 of 1%) by (ii) a percentage equal to 100% minus the then stated maximum
rate of all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves required by applicable law)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency funding or liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D).
"LIBOR Loan" shall mean each Loan designated as such by the
respective Borrower at the time of the making thereof or conversion thereto
bearing interest at the rates provided in Section 1.08(b).
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other similar recording or notice statute, and any lease having
substantially the same effect as any of the foregoing).
"Loan" shall mean each Revolving Loan and each Swingline Loan.
"Mandatory Borrowing" shall have the meaning provided in
Section 1.01(c).
"Margin Stock" shall have the meaning provided in Regulations
T, U and X.
"Material Adverse Effect" shall mean an event or occurrence
that could, individually or in the aggregate (taken with the context of the
circumstances) reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the relevant Borrower or Borrowers taken as a whole.
"Maximum Swingline Amount" shall mean $25,000,000.
"Non-Extending Bank" shall have the meaning provided in
Section 1.13.
"Notice of Borrowing" shall have the meaning provided in
Section 1.03.
"Notice of Conversion" shall have the meaning provided in
Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent located at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
Xxxxxxx, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
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"Obligations" shall mean all amounts owing to the Agents or
any Bank pursuant to the terms of this Agreement or any other Credit Document.
"Payment Office" shall mean the office of the Administrative
Agent located at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
Xxxxxxx, or such other office as the Administrative Agent may hereafter
designate in writing as such to the other parties hereto.
"Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Commitment of such
Bank at such time and the denominator of which is the Total Commitment at such
time; provided that if a Percentage of any Bank is to be determined after the
Total Commitment has been terminated, then the Percentage of such Bank shall be
determined immediately prior (and without giving effect) to such termination.
"Person" shall mean any individual, partnership, limited
liability company, joint venture, firm, corporation, association, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"Plan" shall mean any "employee benefit plan" as defined in
Section 3(3) of ERISA subject to Title I of ERISA or any "plan" subject to
Section 4975 of the Code.
"Prime Lending Rate" shall mean the rate which the
Administrative Agent announces from time to time as its prime lending rate, the
Prime Lending Rate to change when and as such prime lending rate changes. The
Prime Lending Rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer. The Administrative Agent
may make commercial loans or other loans at rates of interest at, above or below
the Prime Lending Rate.
"Prospectus" shall mean each Borrower's prospectus, in each
case together with any Statement of Additional Information incorporated therein
and as supplemented, amended or modified from time to time in accordance with
the provisions of this Agreement.
"Registration Statement" shall mean the Registration Statement
as currently in effect of each Fund delivered to the Banks pursuant to Section
4.05.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
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"Regulation X" shall mean Regulation X of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.
"Repurchase Agreement" shall mean any agreement to purchase an
asset presently and then to sell such asset to any other Person in the future.
"Requested Extension Effective Date" shall have the meaning
provided in Section 1.13.
"Required Banks" shall mean Banks, the sum of whose
outstanding Commitments (or after the termination thereof, the total outstanding
Loans) at such time exceeds 50% of the Total Commitment (or after the
termination thereof, the total outstanding Loans).
"Reverse Repurchase Agreement" shall mean any agreement to
sell an asset presently and then to repurchase such asset in the future.
"Revolving Loan" shall have the meaning set forth in Section
1.01.
"Senior Securities" shall have the meaning ascribed to such
term in Section 18 of the Investment Company Act.
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, association, joint
venture, limited liability company or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"Swingline Bank" shall mean Deutsche Bank AG, New York Branch.
"Swingline Expiry Date" shall mean the date which is five
Business Days prior to the Expiry Date.
"Swingline Loan" shall have the meaning provided in Section
1.01(b).
"Syndication Agent" shall mean Deutsche Bank Securities Inc.,
in its capacity as Syndication Agent.
"Taxes" shall have the meaning provided in Section 3.04(a).
"Total Commitment" shall mean, at any time, the sum of the
Commitments of each of the Banks.
"Total Unutilized Commitment" shall mean, at any time, an
amount equal to the remainder of (i) the Total Commitment at such time less (ii)
the aggregate principal amount of
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Loans then outstanding, provided that, for purposes of calculating the
Commitment Fee pursuant to Section 2.01(a), "Total Unutilized Commitment" shall
mean an amount equal to the remainder of (i) the Total Commitment at such time
less (ii) the aggregate principal amount of Revolving Loans then outstanding.
"Type" shall mean the type of Loan determined with regard to
the interest option applicable thereto, I.E., whether a Base Rate Loan or a
Fixed Rate Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"United States" and "U.S." shall each mean the United States
of America.
10.02 ASSUMPTIONS REGARDING STRUCTURE; MASSACHUSETTS BUSINESS
TRUSTS. (a) For the sake of clarity and construction, the parties hereto hereby
set forth their acknowledgment and agreement that each Borrower is an investment
portfolio of a Fund and is not a separately existing legal entity entitled to
enter into contractual agreements or to execute instruments and, for these
reasons, any such Fund is executing this Agreement and each respective Note on
behalf of its investment portfolios, as Borrowers, and that such investment
portfolios will utilize the Loans thus made on their behalf. Notwithstanding
anything to the contrary in this Agreement, each Borrower shall be liable
hereunder only for the Loans made to such Borrower hereunder and interest
thereon and for the fees and expenses associated therewith and as otherwise set
forth herein, and in no event shall any Borrower or its assets be held liable
for the Loans made to any other Borrower hereunder or interest thereon or for
the fees and expenses associated therewith.
(b) Each of the Funds is a Massachusetts business trust and
all persons dealing with any Fund must look solely to the property of such Fund
for the enforcement of any claim against such Fund because neither the trustees,
officers, agents nor shareholders of such Fund assume any personal liability for
obligations entered into on behalf of such Fund. The obligations of each
Borrower hereunder shall be several (and neither joint or joint and several) and
the obligations of each Borrower hereunder shall be payable solely from the
revenues and assets of such Borrower and not the assets or revenues of any other
Borrower.
SECTION 11. THE AGENTS.
11.01 APPOINTMENT. The Banks hereby designate Deutsche Bank
Securities Inc. as Arranger and Syndication Agent and Deutsche Bank AG, New York
Branch, as Administrative Agent to act as specified herein and in the other
Credit Documents. Each Bank hereby irrevocably authorizes the Agents to take
such action on its behalf under the provisions of this Agreement, the other
Credit Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Agents by the
terms hereof and thereof and such other powers as are reasonably incidental
thereto. The Agents may perform any of their duties hereunder by or through its
respective officers, directors, agents, employees or affiliates.
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11.02 NATURE OF DUTIES. The Agents shall not have any duties
or responsibilities except those expressly set forth in this Agreement and the
other Credit Documents. None of the Agents nor any of their respective officers,
directors, agents, employees or affiliates shall be liable for any action taken
or omitted by it or them hereunder or under any other Credit Document or in
connection herewith or therewith, unless caused by its or their gross negligence
or willful misconduct. The duties of the Agents shall be mechanical and
administrative in nature; the Agents shall not have by reason of this Agreement
or any other Credit Document a fiduciary relationship in respect of any Bank;
and nothing in this Agreement or any other Credit Document, expressed or
implied, is intended to or shall be so construed as to impose upon the Agents
any obligations in respect of this Agreement or any other Credit Document except
as expressly set forth herein or therein.
11.03 LACK OF RELIANCE ON THE AGENTS. Independently and
without reliance upon the Agents, each Bank, to the extent it deems appropriate,
has made and shall continue to make (i) its own independent investigation of the
financial condition and affairs of the Borrowers in connection with the making
and the continuance of the Loans and the taking or not taking of any action in
connection herewith and (ii) its own appraisal of the creditworthiness of the
Borrowers and, except as expressly provided in this Agreement, the Agents shall
not have any duty or responsibility, either initially or on a continuing basis,
to provide any Bank with any credit or other information with respect thereto,
whether coming into its possession before the making of any Loan or at any time
or times thereafter. The Agents shall not be responsible to any Bank for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection herewith or
for the execution, effectiveness, genuineness, validity, enforceability,
perfection, collectibility, priority or sufficiency of this Agreement or any
other Credit Document or the financial condition of any Borrower, or be required
to make any inquiry concerning either the performance or observance of any of
the terms, provisions or conditions of this Agreement or any other Credit
Document, or the financial condition of any Borrower, or the existence or
possible existence of any Default or Event of Default.
11.04 CERTAIN RIGHTS OF THE AGENTS. If any Agent shall request
instructions from the Required Banks with respect to any act or action
(including failure to act) in connection with this Agreement or any other Credit
Document, such Agent shall be entitled to refrain from such act or taking such
action unless and until such Agent shall have received instructions from the
Required Banks; and the Agents shall not incur liability to any Person by reason
of so refraining. Without limiting the foregoing, no Bank shall have any right
of action whatsoever against the Agents as a result of the Agents acting or
refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Banks.
11.05 RELIANCE. The Agents shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that such Agent believed to be the proper Person and, with respect to
all legal matters pertaining to this Agreement and any other Credit Document and
its duties hereunder and thereunder, upon advice of counsel selected by the
Agents.
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11.06 INDEMNIFICATION. To the extent the Agents are not
reimbursed and indemnified by the Borrowers, the Banks will reimburse and
indemnify the Agents, in proportion to their respective Percentages, for and
against any and all liabilities, obligations, losses, damages, penalties,
claims, actions, judgments, costs, expenses or disbursements of whatsoever kind
or nature which may be imposed on, asserted against or incurred by the Agents in
performing their respective duties hereunder or under any other Credit Document,
in any way relating to or arising out of this Agreement or any other Credit
Document; provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct.
11.07 THE AGENTS IN THEIR INDIVIDUAL CAPACITIES. With respect
to their respective obligations to make Loans under this Agreement, the Agents
shall have the rights and powers specified herein for a "Bank" and may exercise
the same rights and powers as though it were not performing the duties specified
herein; and the term "Banks," "Required Banks" or any similar terms shall,
unless the context clearly otherwise indicates, include the Agents in their
individual capacities. The Agents may accept deposits from, lend money to, and
generally engage in any kind of banking, trust or other business with the
Borrowers or any affiliate of a Borrower as if it were not performing the duties
specified herein, and may accept fees and other consideration from any Borrower
or any affiliate of a Borrower for services in connection with this Agreement
and otherwise without having to account for the same to the Banks.
11.08 RESIGNATION BY THE AGENTS. (a) Either Agent may resign
from the performance of all its functions and duties hereunder and/or under the
other Credit Documents at any time by giving 15 Business Days' prior written
notice to the Borrowers and the Banks. Such resignation by the Administrative
Agent shall take effect upon the appointment of a successor Administrative Agent
pursuant to Sections 11.08(b) and (c) below or as otherwise provided in this
Agreement.
(b) Upon any such notice of resignation, the Banks shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrowers (it
being understood and agreed that any Bank is deemed to be acceptable to the
Borrowers).
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Borrowers (such consent not to be unreasonably withheld), shall
then appoint a successor Administrative Agent who shall serve as Administrative
Agent hereunder or thereunder until such time, if any, as the Banks appoint a
successor Administrative Agent as provided in Section 11.08(b).
(d) Upon the resignation of the Administrative Agent pursuant
to clause (a) above, the successor Administrative Agent at such time shall
assume all of the duties and functions of the Administrative Agent.
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SECTION 12. MISCELLANEOUS.
12.01 PAYMENT OF EXPENSES, INDEMNIFICATION, ETC. The Borrowers
shall: (i) whether or not the transactions herein contemplated are consummated,
pay all out-of-pocket costs and expenses of the Agents (including, without
limitation, the reasonable fees, costs and disbursements of White & Case LLP) in
connection with the preparation, execution and delivery of this Agreement and
the other Credit Documents and the documents and instruments referred to herein
and therein and any amendment, waiver or consent relating hereto or thereto, of
the Agents in connection with their syndication efforts with respect to this
Agreement and of the Agents and each of the Banks in connection with the
enforcement of this Agreement and the other Credit Documents and the documents
and instruments referred to herein and therein (including, without limitation,
the reasonable fees and disbursements of counsel for the Agents and for each of
the Banks); (ii) pay and hold each of the Banks harmless from and against any
and all present and future stamp, excise and other similar taxes with respect to
the foregoing matters and save each of the Banks harmless from and against any
and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to such Bank) to pay such taxes; and
(iii) indemnify the Agents and each Bank, and each of their respective officers,
directors, employees, representatives and agents from and hold each of them
harmless against any and all liabilities, obligations (including removal or
remedial actions or any other environmental claims), losses, damages, penalties,
claims, actions, judgments, suits, costs, expenses and disbursements (including
reasonable attorneys' and consultants' fees and disbursements) incurred by,
imposed on or assessed against any of them as a result of, or arising out of, or
in any way related to, or by reason of, any investigation, litigation or other
proceeding (whether or not such Agent or any Bank is a party thereto) related to
the entering into and/or performance of this Agreement or any other Credit
Document or the use of any of the proceeds of any Loans hereunder or the
consummation of any transactions contemplated herein or in any other Credit
Document or the exercise of any of their rights or remedies provided herein or
in the other Credit Documents (but excluding any losses, liabilities, claims,
damages or expenses to the extent incurred by reason of the gross negligence or
willful misconduct of the Person to be indemnified). To the extent that the
undertaking to indemnify, pay or hold harmless any Person set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, the Borrowers shall make the maximum contribution to the payment
and satisfaction of each of the indemnified liabilities which is permissible
under applicable law. Each Borrower's obligations under this Section 12.01 are
several and not joint or joint and several, with such obligations to be
allocated to each Borrower PRO RATA based on the relative asset size of the
Borrowers or, upon prior written notice to the Agents, based on such other
method acceptable to the Agents as the Investment Advisor shall determine in
compliance with the Investment Company Act.
12.02 RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default each
Bank is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the defaulting Borrower, the
Investment Adviser or any other Person, any such notice being hereby expressly
waived, to setoff and to appropriate and apply any and all deposits (general or
special) and any other Indebtedness
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at any time held or owing by such Bank (including, without limitation, by
branches and agencies of such Bank wherever located) to or for the credit or the
account of such defaulting Borrower against and on account of the Obligations
and liabilities of such defaulting Borrower to such Bank under this Agreement or
under any of the other Credit Documents, including, without limitation, all
interests in Obligations purchased by such Bank pursuant to Section 12.06(b),
and all other claims of any nature or description arising out of or connected
with this Agreement or any other Credit Document, irrespective of whether or not
such Bank shall have made any demand hereunder and although such Obligations,
liabilities and claims, or any of them, shall be contingent or unmatured.
12.03 NOTICES. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including facsimile, telegraphic, telex, telecopier or cable communication) and
mailed, faxed, telegraphed, telexed, telecopied, cabled or delivered:
if to the Borrowers, at:
c/o FLEET INVESTMENT ADVISORS INC.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
PFPC Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
18th and Cherry Sts.
Xxxxxxxxxxxx, XX 00000
Attn: Xx. Xxxx Xx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to a Bank or the Administrative Agent, at such party's address specified
opposite its name on Schedule III; if to the Administrative Agent, at its Notice
Office; or, as to the Borrowers or the
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Administrative Agents, at such other address as shall be designated by such
party in a written notice to the other parties hereto and, as to any Bank or the
Administrative Agent, at such other address as shall be designated by such party
in a written notice to the Borrowers and the Administrative Agent. All such
notices and communications shall, when mailed, telegraphed, telexed, telecopied,
or cabled or sent by overnight courier, be effective when deposited in the
mails, delivered to the telegraph company, cable company or overnight courier,
as the case may be, or sent by facsimile, telex or telecopier, except that
notices and communications to the Administrative Agent shall not be effective
until received by the Administrative Agent.
12.04 BENEFIT OF AGREEMENT. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, that no
Borrower may assign or transfer any of its rights, obligations or interest
hereunder or under any other Credit Document (it being understood that any
merger, consolidation, sale or purchase permitted by Section 8.02 shall not be
considered an assignment) without the prior written consent of each of the Banks
and, provided further, that although any Bank may transfer, assign or grant
participations in its rights as provided hereunder, such Bank shall remain a
"Bank" for all purposes hereunder (and may not transfer or assign all or any
portion of its Commitment hereunder except as provided in Section 12.04(b)) and
the transferee, assignee or participant, as the case may be, shall not
constitute a "Bank" hereunder and, provided further, that no Bank shall transfer
or grant any participation under which the participant shall have rights to
approve any amendment to or waiver of any terms of this Agreement or any other
Credit Document except to the extent such amendment or waiver would extend the
final scheduled maturity of any Loan in which such participant is participating,
or reduce the rate or extend the time of payment of interest or Fees thereon
(except in connection with a waiver of applicability of any post-default
increase in interest rates) or reduce the principal amount thereof, or increase
the amount of the participant's participation over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default or
of a mandatory reduction in the Total Commitment shall not constitute a change
in the terms of such participation, and that an increase in the Total Commitment
or Loan shall be permitted without the consent of any participant if the
participant's participation is not increased as a result thereof). In the case
of any such participation, the participant shall not have any rights under this
Agreement or any of the other Credit Documents (the participant's rights against
such Bank in respect of such participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating thereto)
and all amounts payable by the Borrowers hereunder shall be determined as if
such Bank had not sold such participation. Notwithstanding the foregoing, so
long as no Default or Event of Default exists and is continuing, without the
prior written consent of the Borrowers, no Bank may grant a participation in its
rights hereunder to any participant which owns a majority interest in a no-load
mutual fund company with assets under management of greater than
$15,000,000,000.
(b) Notwithstanding the foregoing, any Bank (or any Bank
together with one or more other Banks) may (x) assign all or a portion of its
Commitment and related outstanding Obligations hereunder to its parent company
and/or any affiliate of such Bank or to one or more Banks or (y) assign all or a
portion of such Commitment to one or more Eligible Transferees, acceptable to
the Administrative Agent, each of which assignees shall become party to this
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Agreement as a Bank by execution of an Assignment and Assumption Agreement,
provided that (i) at such time Schedule II shall be deemed modified to reflect
the Commitments of such new Bank and of the existing Banks, (ii) the consent of
the Administrative Agent shall be required in connection with any assignment to
an Eligible Transferee pursuant to clause (y) above, (iii) so long as no Default
or Event of Default exists and is continuing, the written consent of each
Borrower shall be required, which consent shall not be unreasonably withheld or
delayed and provided that no consent shall be required in connection with a
transfer to any Bank's Affiliates so long as such Affiliate is an Eligible
Transferee, (iv) assignments shall be in minimum amounts of $5,000,000 and (v)
the Administrative Agent shall receive, at the time of each such assignment,
from the assigning or assignor Bank, the payment of a non-refundable fee of
$3,500. To the extent of any assignment pursuant to this Section 12.04(b), the
assigning Bank shall be relieved of its obligations hereunder with respect to
its assigned Commitment. At the time of each assignment pursuant to this Section
12.04(b) to a Person which is not already a Bank hereunder and which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes, the respective assignee Bank shall,
to the extent legally entitled to do so, provide to the Borrowers the forms
described in clause (ii) of Section 3.04(b). To the extent that an assignment of
all or any portion of a Bank's Commitment and related outstanding Obligations
pursuant to this Section 12.04(b) would, at the time of such assignment, result
in increased costs under Section 1.10, 1.11 or 3.04 from those being charged by
the respective assigning Bank prior to such assignment, then the Borrowers shall
not be obligated to pay such increased costs (although the Borrowers shall be
obligated to pay any other increased costs of the type described above resulting
from changes after the date of the respective assignment).
(c) Notwithstanding anything to the contrary contained in this
Section 12.04, in connection with any participation or assignment the respective
Bank granting the assignment or participation shall (i), in the agreement with
respect thereto, obtain a representation from the participant or assignee to the
effect that it is not an Affiliated Person of the Investment Adviser or any
Borrower, or an Affiliated Person of such an Affiliated Person of the Investment
Adviser or any Borrower and (ii) inform such Person in writing that its review
of all non-public information made available to such Person is subject to the
confidentiality provisions contained in Section 12.15 of this Agreement.
(d) Nothing in this Agreement shall prevent or prohibit any
Bank from pledging its Loans to a Federal Reserve Bank without the consent of
any Borrower in support of borrowings made by such Bank from such Federal
Reserve Bank, provided that no such pledge shall release the pledgor Bank from
its obligations hereunder.
12.05 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on
the part of the Agents or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
the Investment Adviser and/or any Borrower and the Agent or any Bank shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights, powers and remedies herein or
in any other Credit
-44-
Document, unless expressly provided otherwise, are cumulative and not exclusive
of any rights, powers or remedies which the Agents or any Bank would otherwise
have. No notice to or demand on any Borrower or the Investment Adviser shall in
any case entitle any Borrower or the Investment Adviser to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the Agents or any Bank to any other or further action in any
circumstances without notice or demand.
12.06 PAYMENTS PRO RATA. (a) Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of any Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Banks (other than any Bank
that has consented in writing to waive its PRO RATA share of any such payment)
PRO RATA based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.
(b) Each of the Banks agrees that if it receives any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or Commitment Fee, and which is in a greater proportion (vis a vis
the amount then owed all Banks) than the amount received at the time by all
other Banks, then such Bank receiving such excess payment shall purchase for
cash without recourse or warranty from the other Banks an interest in the
Obligations of the respective Borrowers to such Banks in such amount as shall
result in a proportional participation by all the Banks in such amount; provided
that if all or any portion of such excess amount is thereafter recovered from
such Bank, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest.
12.07 CALCULATIONS; COMPUTATIONS. (a) The financial statements
to be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as set forth in the
notes thereto or as otherwise disclosed in writing by the relevant Borrower to
the Banks); provided, however, that, except as otherwise specifically provided
herein, all computations determining compliance with Section 8 shall utilize
accounting principles and policies in conformity with those used to prepare the
historical financial statements delivered to the Banks pursuant to Section
6.05(a).
(b) All computations of interest and Commitment Fees hereunder
shall be made on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or Commitment Fees are payable.
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE
-45-
WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW PROVISIONS THEREOF. 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 NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWERS
HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE
BORROWERS HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT SUCH COURTS LACK
JURISDICTION OVER SUCH PERSON, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
BROUGHT IN ANY OF THE AFORESAID COURTS, THAT ANY SUCH COURT LACKS JURISDICTION
OVER SUCH BORROWER. EACH OF THE BORROWERS FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, WITH RETURN RECEIPT REQUESTED, TO SUCH PERSON AT ITS ADDRESS
SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER RECEIPT. EACH OF THE BORROWERS HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO
SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED UNDER THIS AGREEMENT OR UNDER ANY
OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENTS UNDER THIS
AGREEMENT OR ANY BANK TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OTHER PARTY TO
THIS AGREEMENT IN ANY OTHER JURISDICTION.
(b) EACH OF THE BORROWERS HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS
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AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
12.09 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrowers at their office for delivery or notices, the Agents and each of the
Banks.
12.10 EFFECTIVENESS. This Agreement shall become effective on
the date (the "Effective Date") on which (i) each Borrower and each of the Banks
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered the same to the Administrative Agent at
its Notice Office or, in the case of the Banks, shall have given to the
Administrative Agent telephonic (confirmed in writing), written or telex notice
(actually received) at such office that the same has been signed and mailed to
it and (ii) each of the conditions set forth in Section 4 have been satisfied or
waived. The Administrative Agent will give each Borrower and each Bank prompt
notice of the occurrence of the Effective Date.
12.11 TABLE OF CONTENTS AND HEADINGS DESCRIPTIVE. The table of
contents and the headings of the several sections and subsections of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
12.12 AMENDMENT OR WAIVER; ETC. Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by each Borrower and the Required Banks, provided that no such
change, waiver, discharge or termination shall, without the consent of each Bank
(with Obligations being directly affected in the case of following clause (i)),
(i) extend the final scheduled maturity of any Loan, or reduce the rate or
extend the time of payment of interest or Fees thereon, or reduce the principal
amount thereof, (ii) amend, modify or waive any provision of Section 1.13,
Section 1.14 or this Section 12.12, (iii) reduce the percentage specified in the
definition of Required Banks (it being understood that, with the consent of the
Required Banks, additional extensions of credit pursuant to this Agreement may
be included in the determination of the Required Banks on substantially the same
basis as the extensions of Commitments are included on the Effective Date) or
(iv) consent to the assignment or transfer by any Borrower of any of its
respective rights or obligations under this Agreement or any Credit Document;
provided further, that no such change, waiver, discharge or termination shall
(x) increase the Total Commitment of any Bank over the amount thereof then in
effect without the consent of such Bank (it being understood that waivers or
modifications of conditions precedent, covenants, Defaults or Events of Default
or of a mandatory reduction in the Total Commitment shall not constitute an
increase of the Commitment of any Bank, and that an increase in the available
portion of the Commitment of any Bank shall not constitute an increase in the
Commitment of such Bank) (y) without the consent of the Agents, amend, modify or
waive any provision of Section 11 as same applies to the Agents or any other
provision as same relates to the rights or obligations of the Agents or (z)
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without the consent of the Swingline Bank, alter its rights or obligations with
respect to Swingline Loans.
12.13 SURVIVAL. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 3.04, 12.01 and 12.06 shall survive
the execution, delivery and termination of this Agreement and the making and
repayment of the Loans.
12.14 DOMICILE OF LOANS. Each Bank may transfer and carry its
Loans at, to or for the account of any office, Subsidiary or affiliate of such
Bank. Notwithstanding anything to the contrary contained herein, to the extent
that a transfer of Loans pursuant to this Section 12.14 would, at the time of
such transfer, result in increased costs under Section 1.10, 1.11 or 3.04 from
those being charged by the respective Bank prior to such transfer, then the
relevant Borrower shall not be obligated to pay such increased costs (although
the Borrowers shall be obligated to pay any other increased costs of the type
above resulting from changes after the date of the respective transfer).
12.15 CONFIDENTIALITY. (a) Subject to the provisions of clause
(b) of this Section 12.15, each Bank agrees that it will use its best efforts
not to disclose without the prior consent of a Borrower (other than to its
employees, auditors, advisors or counsel or to another Bank if the Bank or such
Bank's holding or parent company in its sole discretion determines that any such
party should have access to such information, provided that such Persons shall
be subject to the provisions of this Section 12.15 to the same extent as such
Bank) any information with respect to such Borrower which is now or in the
future furnished pursuant to this Agreement or any other Credit Document and
which is designated by such Borrower to the Banks in writing as confidential,
provided that any Bank may disclose such information (i) as has become generally
available to the public, (ii) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state or Federal regulatory
body having or claiming to have jurisdiction over such Bank or to the Federal
Reserve Board or the Federal Deposit Insurance Corporation or similar
organizations (whether in the United States or elsewhere) or their successors,
(iii) as may be required or appropriate in respect of any summons or subpoena
binding upon it or in connection with any litigation, (iv) in order to comply
with any law, order, regulation or ruling applicable to such Bank, (v) to any of
the Agents and (vi) to any prospective or actual transferee or participant in
connection with any contemplated transfer or participation in any of the
Commitments or any interest therein by such Bank, provided that such prospective
transferee agrees to be bound by the provisions of this Section 12.15; PROVIDED,
that any Bank that is, or in good faith believes that it is, required to divulge
confidential information under legal process or other governmental authority
shall, to the extent reasonably practicable, promptly notify the relevant
Borrower in order to give such Borrower the opportunity to seek appropriate
protection from such disclosure.
(b) Each Borrower hereby acknowledges and agrees that each
Bank may share with any of its affiliates any information related to such
Borrower (including, without limitation, any non-public customer information
regarding the creditworthiness of such Borrower, provided such Persons shall be
subject to the provisions of this Section 12.15 to the same extent as such
Bank).
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
DEUTSCHE BANK AG, NEW YORK
BRANCH, as Administrative Agent
/s/Xxxx Xxxxx
By_____________________________________
Name: Xxxx Xxxxx
Title: Vice President
/s/ Xxxxxxx X. Xxxxxxx
By_____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
as Arranger and Syndication Agent
/s/ Xxxx Xxxxx
By_____________________________________
Name: Xxxx Xxxxx
Title: Vice President
/s/ Xxxxxxx X. Xxxxxxx
By_____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
DEUTSCHE BANK AG, NEW YORK
BRANCH
/s/ Xxxx Xxxxx
By_____________________________________
Name: Xxxx Xxxxx
Title: Vice President
/s/ Xxxxxxx X. Xxxxxxx
By_____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
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THE GALAXY FUND, on behalf of the
Borrowers listed on Schedule I-A
/s/ Xxxxxxx Xxxxxxxx
By_____________________________________
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
THE GALAXY VIP FUND, on behalf of the
Borrowers listed on Schedule I-B
/s/ Xxxxxxx Xxxxxxxx
By_____________________________________
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
GALAXY FUND II, on behalf of the
Borrowers listed on Schedule I-C
/s/ Xxxxxxx Xxxxxxxx
By_____________________________________
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
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SCHEDULE I
BORROWERS
THE GALAXY FUND
Asset Allocation Fund
Equity Value Fund
Equity Income Fund
Equity Growth Fund
International Equity Fund
Small Company Equity Fund
Growth and Income Fund
Small Cap Value Fund
Strategic Equity Fund
Intermediate Government Income Fund
High Quality Bond Fund
Short-Term Bond Fund
Corporate Bond Fund
Tax-Exempt Bond Fund
New York Municipal Bond Fund
Connecticut Municipal Bond Fund
Massachusetts Municipal Bond Fund
Rhode Island Municipal Bond Fund
New Jersey Municipal Bond Fund
GALAXY FUND II
Small Company Index Fund
Large Company Index Fund
Utility Index Fund
U.S. Treasury Index Fund
Municipal Bond Fund
SCHEDULE I
Page 2
THE GALAXY VIP FUND
Asset Allocation Fund
Equity Fund
Growth and Income Fund
High Quality Bond Fund
Small Company Growth Fund
Columbia Real Estate Equity Fund II
Columbia High Yield Fund II
SCHEDULE II
COMMITMENTS
NAME OF BANK COMMITMENT
Deutsche Bank AG, New York Branch $150,000,000
------------
TOTAL $150,000,000
------------
------------
SCHEDULE III
BANK ADDRESSES
Deutsche Bank AG, 31 West 52nd Street
New York Branch Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxx Xxxxx
SCHEDULE IV
CUSTODY AGREEMENTS
A. THE GALAXY FUND
1. Global Custody Agreement dated November 1, 1991 between The
Galaxy Fund and The Chase Manhattan Bank, N.A.
2. Amendment dated December 2, 1998 to Global Custody Agreement
between The Galaxy Fund and The Chase Manhattan Bank.
B. THE GALAXY VIP FUND
1. Global Custody Agreement dated November 13, 1992 between The
Galaxy VIP Fund and The Chase Manhattan Bank, N.A.
2. Amendment No. 1 dated March 2, 1998 to Global Custody
Agreement between The Galaxy VIP Fund and The Chase Manhattan
Bank.
3. Amendment dated December 17, 1998 to Global Custody Agreement
between The Galaxy Fund and The Chase Manhattan Bank.
C. GALAXY FUND II
1. Mutual Fund Custody Agreement dated as of June 30, 1994 among
Galaxy Fund II, The Chase Manhattan Bank, N.A. and Fleet
National Bank
SCHEDULE V
INVESTMENT ADVISORY AGREEMENTS
A. THE GALAXY FUND
1. Advisory Agreement dated as of May 19, 1994 between The Galaxy
Fund and Fleet Investment Advisors, Inc.
2. Addendum No. 1 dated as of December 1, 1995 to the Advisory
Agreement between The Galaxy Fund and Fleet Investment
Advisors Inc.
3. Addendum No. 2 dated as of March 3, 1998 to the Advisory
Agreement between The Galaxy Fund and Fleet Investment
Advisors Inc.
4. Addendum No. 3 dated as of September 18, 1998 to the Advisory
Agreement between The Galaxy Fund and Fleet Investment
Advisors Inc.
5. Sub-Advisory Agreement dated as of October 8, 1998 between
Fleet Investment Advisors Inc. and Xxxxxxx International
Advisors, LLC.
B. THE GALAXY VIP FUND
1. Advisory Agreement dated as of September 30, 1992 between The
Galaxy VIP Fund and Fleet Investment Advisors Inc.
2. Advisory Agreement dated as of February 27, 1998 between The
Galaxy VIP Fund and Columbia Management Co.
C. GALAXY FUND II
1. Advisory Agreement dated as of June 30, 1994 between Galaxy
Fund II and Fleet Investment Advisors Inc.
EXHIBITS NOT INCLUDED
TABLE OF CONTENTS
PAGE
SECTION 1. Amount and Terms of Credit.......................................1
1.01 The Commitments..............................................1
1.02 Minimum Amount of Each Borrowing.............................3
1.03 Notice of Borrowing..........................................3
1.04 Disbursement of Funds........................................4
1.05 Ledger.......................................................4
1.06 Conversions..................................................4
1.07 Pro Rata Borrowings..........................................5
1.08 Interest.....................................................5
1.09 Interest Periods.............................................6
1.10 Increased Costs; Illegality; Etc.............................7
1.11 Compensation.................................................9
1.12 Replacement of Banks.........................................9
1.13 Extension of Expiry Date....................................10
1.14 Addition of New Borrowers...................................11
1.15 Removal of Borrowers........................................11
SECTION 2. Fees; Reductions of Commitment..................................12
2.01 Fees........................................................12
2.02 Voluntary Termination of Unutilized Commitments;
Termination of Commitments..................................12
SECTION 3. Prepayments; Payments; Taxes....................................12
3.01 Voluntary Prepayments.......................................12
3.02 Mandatory Repayments........................................13
3.03 Method and Place of Payment.................................13
3.04 Net Payments................................................13
SECTION 4. Conditions Precedent to the Effective Date......................16
4.01 Execution of Agreement......................................16
4.02 Officers'Certificates.......................................16
4.03 Opinion of Counsel..........................................16
4.04 Proceedings; Etc............................................16
4.05 Material Agreements.........................................17
4.06 Adverse Change; Etc.........................................17
4.07 Litigation..................................................17
4.08 Fees, Etc...................................................17
4.09 Form FR U-1.................................................17
SECTION 5. Conditions Precedent to All Loans...............................18
5.01 No Default; Representations and Warranties..................18
5.02 Notice of Borrowing.........................................18
SECTION 6. Representations, Warranties and Agreements......................18
6.01 Corporate Status............................................18
6.02 Power and Authority.........................................18
6.03 No Violation................................................19
6.04 Governmental Approvals......................................19
6.05 Financial Statements; Financial Condition;
Undisclosed Liabilities; etc................................19
6.06 Litigation..................................................20
6.07 True and Complete Disclosure................................20
6.08 Use of Proceeds; Margin Regulations.........................20
6.09 ERISA.......................................................20
6.10 Compliance with Statutes, Etc...............................21
6.11 Investment Company..........................................21
6.12 Investment Adviser..........................................21
6.13 Affiliation with the Banks..................................21
6.14 Senior Status...............................................21
6.15 Tax Returns and Payments....................................21
SECTION 7. Affirmative Covenants...........................................22
7.01 Information Covenants.......................................22
7.02 Books, Records and Inspections..............................23
7.03 Compliance with Statutes; Etc...............................23
7.04 Investment Company..........................................23
7.05 Compliance with Investment Practices........................23
7.06 Compliance with Regulation U................................23
7.07 Use of Proceeds.............................................24
7.08 Payment of Taxes............................................24
SECTION 8. Negative Covenants..............................................24
8.01 Liens.......................................................24
8.02 Consolidation, Merger, Sale or Purchase of
Assets, Etc.................................................25
8.03 Indebtedness................................................25
8.04 Restrictions on Issuance of Capital Stock...................26
8.05 Modifications of Investment Practices,
Governing Documents, and Certain Other Agreements...........26
8.06 Business....................................................26
8.07 ERISA.......................................................26
8.08 Affiliated Person...........................................26
8.09 Asset Coverage Ratio........................................27
SECTION 9. Events of Default...............................................27
9.01 Payments....................................................27
9.02 Representations; Etc........................................27
9.03 Covenants...................................................27
9.04 Default Under Other Agreements..............................27
9.05 Bankruptcy; Etc.............................................27
9.06 Judgments...................................................28
9.07 Investment Adviser..........................................28
9.08 Custody Agreement...........................................28
SECTION 10. Definitions and Accounting Terms...............................29
10.01 Defined Terms..............................................29
10.02 Assumptions Regarding Structure;
Massachusetts Business Trusts..............................38
SECTION 11. The Agents.....................................................38
11.01 Appointment................................................38
11.02 Nature of Duties...........................................39
11.03 Lack of Reliance on the Agents.............................39
11.04 Certain Rights of the Agents...............................39
11.05 Reliance...................................................39
11.06 Indemnification............................................40
11.07 The Agents in their Individual Capacities..................40
11.08 Resignation by the Agents..................................40
SECTION 12. Miscellaneous..................................................41
12.01 Payment of Expenses, Indemnification, Etc..................41
12.02 Right of Setoff............................................41
12.03 Notices....................................................42
12.04 Benefit of Agreement.......................................43
12.05 No Waiver; Remedies Cumulative.............................44
12.06 Payments Pro Rata..........................................45
12.07 Calculations; Computations.................................45
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION;
VENUE; WAIVER OF JURY TRIAL................................45
12.09 Counterparts...............................................47
12.10 Effectiveness..............................................47
12.11 Table of Contents and Headings Descriptive.................47
12.12 Amendment or Waiver; Etc...................................47
12.13 Survival...................................................48
12.14 Domicile of Loans..........................................48
12.15 Confidentiality............................................48
SCHEDULES
Schedule I Borrowers
Schedule II Commitments
Schedule III Bank Addresses
Schedule IV Custody Agreements
Schedule V Investment Advisory Agreements
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Officers' Certificate
Exhibit C Form of Opinion of Drinker Xxxxxx & Xxxxx LLP
Exhibit D Form of Assignment and Assumption Agreement
Exhibit E Form FR U-1 certificate
Exhibit F Form of Section 3.04(b)(ii) Certificate
