Exhibit (h)5.1
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CREDIT AGREEMENT
Dated as of December 30, 1999
among
THE INVESTMENT COMPANIES PARTY HERETO,
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Administrative Agent,
STATE STREET BANK AND TRUST COMPANY,
as Operations Agent
and
THE OTHER BANKS PARTY HERETO
Arranged by
BANC OF AMERICA SECURITIES L.L.C.,
as Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
PAGE
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I DEFINITIONS AND INTERPRETATION 1
1.1. Defined Terms 1
1.2. Interpretation 1
1.3. Accounting Terms 2
1.4. Assumptions Regarding Structure 2
1.5. Authority of Company; Company Disclaimer 3
II THE CREDITS 3
2.1. Amounts and Terms of Commitments 3
2.2. Notes 4
2.3. Procedure for Borrowing 4
2.4. Voluntary Termination or Reduction of Commitments 5
2.5. Prepayments 5
2.6. Repayment 5
2.7. Interest 5
2.8. Fees 6
2.9. Computation of Fees and Interest 6
2.10. Payments 7
2.11. Payments by the Banks to the Operations Agent 7
2.12. Sharing of Payments, etc. 8
2.13. Source of Repayment 8
2.14. Swing Loan Facility 9
2.15 Repayment of Swing Loans 9
2.16. Discretionary Facility 9
2.17. Notice of Swing Loan 9
2.18. Failure to Repay Swing Loans 10
III TAXES, YIELD PROTECTION AND ILLEGALITY 10
3.1. Taxes 10
3.2. Capital Adequacy Regulation 11
3.3. Certificates of Banks 12
3.4. Substitution of Banks 12
3.5. Survival 12
IV CONDITIONS TO BORROWING 12
4.1. Conditions of Initial Loan 12
4.2. All Borrowings 14
PAGE
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V REPRESENTATIONS AND WARRANTIES 15
5.1. Existence 15
5.2. Authorization 15
5.3. No Conflicts 15
5.4. Validity and Binding Effect 16
5.5. No Default 16
5.6. Financial Statements 16
5.7. Litigation 16
5.8. Liens 16
5.9. Partnerships 16
5.10. Purpose 16
5.11. Compliance and Government Approvals 17
5.12. Pension and Welfare Plans 17
5.13. Taxes 17
5.14. Subsidiaries; Investments 17
5.15. Full Disclosure 17
5.16. Investment Policies 17
5.17. Tax Status 17
5.18. Status of Loans 18
VI COVENANTS 18
6.1. Financial Statements and Other Reports 18
6.2. Notices 19
6.3. Existence 19
6.4. Nature of Business 20
6.5. Books, Records and Access 20
6.6. Insurance 20
6.7. Investment Policies and Restrictions 20
6.8. Taxes 21
6.9. Compliance 21
6.10. Pension Plans 21
6.11. Merger, Purchase and Sale 21
6.12. Asset Coverage Ratio 22
6.13. Liens 22
6.14. Guaranties 22
6.15. Other Agreements 22
6.16. Transactions with Related Parties 22
6.17. Other Indebtedness 22
6.18. Changes to Organization Documents, etc. 23
6.19. Violation of Investment Restrictions, etc. 23
6.20. Proceeds of Loans 23
6.21. Service Providers to Funds 23
6.22. Outstanding Loans 23
PAGE
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VII EVENTS OF DEFAULT 23
7.1. Events of Default 23
7.2. Remedies 25
8.1. Appointment and Authorization 26
8.2. Delegation of Duties 26
8.3. Liability of Agents 26
8.4. Reliance by Agents 26
8.5. Notice of Default 27
8.6. Credit Decision 27
8.7. Indemnification of Agents 28
8.8. Agents in Individual Capacity 28
8.9. Successor Agent 28
8.10. Withholding Tax 29
IX MISCELLANEOUS PROVISIONS 30
9.1. Amendments and Waivers 30
9.2. Notices 31
9.3. No Waiver; Cumulative Remedies 32
9.4. Costs and Expenses 32
9.5. Funds Indemnification 32
9.6. Payments Set Aside 33
9.7. Successors and Assigns 33
9.8. Confidentiality 34
9.9. Set-off 35
9.10. Notification of Addresses, Lending Offices, etc. 35
9.11. Counterparts 35
9.12. Survival 35
9.13. Disclaimer 36
9.14. Severability 36
9.15. No Third Parties Benefited 36
9.16. Governing Law and Jurisdiction 36
9.17. Waiver of Jury Trial 36
9.18. Entire Agreement 37
SCHEDULE I Definitions
SCHEDULE II Commitments and Pro Rata Shares
SCHEDULE III Offshore and Domestic Lending Offices,
Addresses for Notices
SCHEDULE IV List of Funds
EXHIBIT 2.2 Form of Note
EXHIBIT 2.3 Form of Loan Request/Repayment
EXHIBIT 2.14 Form of Allocation Notice
EXHIBIT 4.1(c)-1 Form of Opinion of Counsel to the Funds
EXHIBIT 5.7-1 Schedule of Litigation
EXHIBIT 5.7-2 Schedule of Contingent Liabilities
EXHIBIT 6.1 Form of Borrowing Base Certificate
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 30, 1999, is made by and
among XXXXX XXXXXXX INVESTMENT COMPANY (the "COMPANY"), as agent for each of the
Funds listed on the signature pages hereto or hereafter added hereto, the
various banks (as defined in Section 2(a)(5) of the Act) as are or may become
party hereto (collectively, the "BANKS") (none of which is affiliated (as
defined in the Act) with any of the Funds or the Company), BANK OF AMERICA,
NATIONAL ASSOCIATION ("BOFA"), as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") for the Banks and STATE STREET BANK AND TRUST COMPANY
("STATE STREET"), as operations agent (in such capacity, the "OPERATIONS AGENT")
for the Banks.
W I T N E S S E T H:
WHEREAS, the Funds are subtrusts of the Company, which is an investment
company registered under the Act;
WHEREAS, the Funds desire to obtain Commitments from the Banks pursuant
to which Loans, in a maximum aggregate principal amount at any one time
outstanding not to exceed $75,000,000, will be made to such Funds from time to
time prior to the Commitment Termination Date;
WHEREAS, the Banks are willing, on the terms and subject to the
conditions hereinafter set forth, to extend such Commitments and make such Loans
to the Funds; and
WHEREAS, the proceeds of the Loans will be used for the Funds'
temporary liquidity purposes as allowed under the Act.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1. DEFINED TERMS. Unless a clear contrary intention appears, terms
defined in SCHEDULE I have the same respective meanings when used in this
Agreement.
1.2. INTERPRETATION. In this Agreement, unless a clear contrary
intention appears:
(a) the singular number includes the plural number and
VICE VERSA;
(b) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such successors and
assigns are permitted by this Agreement, and reference to a Person in a
particular capacity excludes such Person in any other capacity or
individually;
(c) reference to any gender includes each other gender;
(d) reference to any agreement (including this Agreement),
document or instrument means such agreement, document or instrument as
amended or modified and in effect from time to time in accordance with
the terms thereof and, if applicable, the terms hereof and the other
Credit Documents and reference to any promissory note includes any
promissory note which is an extension or renewal thereof or a
substitute or replacement therefor;
(e) reference to any applicable law means such applicable
law as amended, modified, codified, replaced or reenacted, in whole or
in part, and in effect from time to time, including rules and
regulations promulgated thereunder, and reference to any section or
other provision of any applicable law means that provision of such
applicable law from time to time in effect and constituting the
substantive amendment, modification, codification, replacement or
reenactment of such section or other provision;
(f) reference to any ARTICLE, SECTION, ANNEX, SCHEDULE or
EXHIBIT means such ARTICLE or SECTION hereof or ANNEX, SCHEDULE or
EXHIBIT hereto;
(g) "hereunder", "hereof", "hereto" and words of similar
import shall be deemed references to this Agreement as a whole and not
to any particular ARTICLE, SECTION or other provision hereof;
(h) "including" (and with the correlative meaning
"include") means including without limiting the generality of any
description preceding such term;
(i) "or" is not exclusive; and
(j) relative to the determination of any period of time,
"from" means "from and including" and "to" and "through" mean "to but
excluding".
1.3. ACCOUNTING TERMS. In this Agreement, unless expressly otherwise
provided, accounting terms shall be construed and interpreted, and accounting
determinations and computations shall be made, in accordance with GAAP.
1.4. ASSUMPTIONS REGARDING STRUCTURE. The parties acknowledge and agree
that the Funds are not separately existing legal entities entitled to enter into
contractual agreements or to execute instruments, and for these reasons, the
Company is executing this Agreement and the relevant Notes on behalf of the
Funds.
1.5. AUTHORITY OF COMPANY; COMPANY DISCLAIMER. Each of the Funds hereby
confirms that the Company has been duly authorized to act on behalf of such Fund
for purposes of this Agreement and the relevant Notes and to take all actions
which such Fund is entitled or required to take hereunder or thereunder,
including, without limitation, requesting the making, continuation or conversion
of Loans on behalf of a Fund pursuant to SECTION 2, reducing or terminating the
Commitments as to one or more Funds, and executing and delivering Loan Requests,
Borrowing Base Certificates and any and all other certificates, reports,
financial information and notices required to be delivered to the Agent
hereunder. Notwithstanding the foregoing or anything to the contrary contained
in this Agreement, the parties hereto acknowledge and agree that (a) in taking
any such action hereunder or under a Note, the Company is acting solely in its
capacity as agent for the Funds and not in its individual capacity, (b) none of
the Company, nor any shareholder of any Fund, nor any of its officers, trustees,
employees or agents (with the Company, collectively, "COMPANY PERSONS") shall
have any liability whatsoever for any action taken or omitted to be taken by any
of them in connection with this Agreement or any Note nor shall any of them be
bound by or liable for any indebtedness, liability or obligation hereunder or
under any Note and (c) no Company Person shall be responsible in any manner to
the Banks for the truth, completeness or accuracy of any statement,
representation, warranty or certification contained in this Agreement or in any
information, report, certificate or other document furnished by the Company on
behalf of any Fund in connection with this Agreement, including, without
limitation, any Loan Request, any Borrowing Base Certificate, and any
certificate or notice furnished pursuant to SECTION 6.1 or 6.2 hereof. The
Agents and the Banks further acknowledge that they have been provided a copy of
Article VI of the Company's Declaration of Trust as filed with the Secretary of
the Commonwealth of Massachusetts and understand and agree that they are bound
by the limitation of liability provisions contained therein pertaining to the
Company, Company Persons and shareholders of the Funds.
ARTICLE II
THE CREDITS
2.1. AMOUNTS AND TERMS OF COMMITMENTS. Each Bank severally agrees, on
the terms and conditions set forth herein, to make Committed Loans to the Funds
from time to time on any Business Day during the period from the Closing Date to
the Commitment Termination Date equal to its Pro Rata Share of the aggregate
amount of the Borrowing requested by any Fund to be made on such day. The
Commitment of each Bank and the outstanding principal amount of Loans made by
each Bank hereunder shall not exceed at any time the aggregate amount set forth
on SCHEDULE II (such amount as the same may be reduced under SECTION 2.5 or as a
result of one or more assignments as permitted herein, the Bank's "COMMITMENT");
PROVIDED, HOWEVER, that, after giving effect to any Borrowing, the aggregate
principal amount of all outstanding Loans shall not at any time exceed the
Commitment Amount, and PROVIDED that the aggregate principal amount of all Loans
outstanding from time to time to any Fund shall not exceed the Borrowing Base
for such Fund. Within the limits of each Bank's Commitment, and subject to the
other terms and conditions hereof, a Fund may borrow under this SECTION 2.1,
repay under the terms hereof and reborrow under this SECTION 2.1.
2.2. NOTES. (a) The Loans made by each Bank to each Fund shall
be evidenced by one or more accounts or records maintained by such Bank in the
ordinary course of business. The accounts or records maintained by the Agent and
each Bank shall be conclusive absent manifest error of the amount of the Loans
made by the Banks to each Fund and the interest and payments thereon. Any
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of such Fund hereunder to pay any amount owing
with respect to the Loans.
(b) Upon the request of any Bank made through the Agent, the Loans made by
such Bank to each Fund may be evidenced by one or more Notes, instead of loan
accounts. Each such Bank shall endorse on the schedules annexed to its
Note(s) the date, amount and maturity of each Loan made by it and the amount
of each payment of principal made by the applicable Fund with respect
thereto. Each such Bank is irrevocably authorized by each Fund to endorse its
Note(s) and each Bank's record shall be conclusive absent manifest error;
PROVIDED, HOWEVER, that the failure of a Bank to make, or an error in making,
a notation thereon with respect to any Loan shall not limit or otherwise
affect the obligations of the applicable Fund hereunder or under any such
Note to such Bank.
2.3. PROCEDURE FOR BORROWING. (a) Each Borrowing shall be made upon the
borrowing Fund's irrevocable written notice delivered to the Operations Agent in
the form of a loan request ("LOAN REQUEST") substantially in the form of EXHIBIT
2.3 hereto (which notice must be received on a Business Day by the Operations
Agent prior to 9:00 a.m. (Pacific time) on the Borrowing Date for which a
Committed Loan is requested, specifying:
(A) the amount of the Borrowing, which shall be in
an aggregate minimum amount of $1,000,000 or any multiple of $1,000,000
in excess thereof; and
(B) the requested Borrowing Date, which shall be a
Business Day.
In the event that more than one Loan Request is delivered on any
Business Day, the Operations Agent shall, for purposes of ensuring that the
aggregate of the then-outstanding Loans and the Loans which are the subject of
the Loan Requests will not exceed the Commitment Amount, process the Loan
Requests in the order of receipt.
(b) The Operations Agent will promptly notify each Bank of
its receipt of any Loan Request and of the amount of such Bank's Pro Rata Share
of that Borrowing.
(c) Each Bank will make the amount of its Pro Rata
Share of each Borrowing available to the Operations Agent for the account of
the borrowing Fund at the Operations Agent's Payment Office by 10:00 a.m.
(Pacific time) on the Borrowing Date requested by the borrowing Fund in funds
immediately available to the Operations Agent for deposit to the account
which the Operations Agent shall from time to time specify by notice to the
Banks. The proceeds of all such Committed Loans will then be made available
to the Fund by the Operations Agent in accordance with written instructions
provided to the Operations Agent by the Fund in like funds as received by the
Operations Agent. No Bank's obligation to make any Committed Loan shall be
affected by any other Bank's failure to make any Committed Loan.
2.4. VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS. The Funds may,
upon not less than five Business Days' prior notice to the Operations Agent,
terminate the Commitments, or permanently reduce the Commitments by an aggregate
minimum amount of $1,000,000 or any multiple of $1,000,000 in excess thereof;
UNLESS, after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the then-outstanding principal amount of the Loans would
exceed the amount of the Commitment Amount then in effect. Once reduced in
accordance with this Section, the Commitment Amount may not be increased. Any
reduction or termination of the Commitment Amount shall be applied to each Bank
according to its Pro Rata Share. Any reduction of the Commitment Amount shall be
subject to the payment on the effective date of such reduction or termination of
an amount equal to the commitment fee that would have been payable on the amount
of such reduction or termination to the Commitment Termination Date, if such
reduction or termination had not occurred.
2.5. PREPAYMENTS. (a) If at any time the outstanding balance of a
Fund's Indebtedness shall exceed the then-current Borrowing Base of such Fund
and at such time there are Loans outstanding to such Fund, such Fund shall
immediately prepay the outstanding principal amount of such Loans in an amount
equal to such excess, together with interest accrued thereon.
(b) Any Fund may, at any time or from time to time,
upon notice pursuant to a Repayment Notice by 9:00 a.m. (Pacific time) to the
Operations Agent, ratably prepay Committed Loans in whole or in part, in
minimum amounts of $1,000,000 or any multiple of $1,000,000 in excess thereof
without premium or penalty. The Operations Agent will promptly notify each
Bank of its receipt of any such notice, and of such Bank's Pro Rata Share of
such prepayment. If such notice is given by the Company, the Company shall
make such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein.
2.6. REPAYMENT. Each Fund shall repay to the Operations Agent
for the benefit of the Banks on the Commitment Termination Date the aggregate
principal amount of its Loans outstanding on such date without liability for any
Loan(s) made to any other Fund together with accrued interest and fees.
2.7. INTEREST. (a) Each Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the Federal Funds Rate PLUS the Applicable Margin.
(b) Interest on each Loan shall be paid on the fifteenth
day of each January, April, July and October for the prior calendar quarter and
on the Commitment Termination Date for the period then ending. During the
existence of any Event of Default, interest shall be paid on demand of the Agent
at the request or with the consent of the Majority Banks.
(c) During the period from the date hereof to and
including February 27, 2000, all interest rates set forth in SECTIONS 2.7(a)
shall be increased by 1.25% per annum.
(d) Notwithstanding subsection (a) or (b) of this Section,
if any amount of principal of or interest on any Loan, or any other amount
payable hereunder or under any other Credit Document, is not paid in full when
due (whether at stated maturity or by acceleration, demand or otherwise), the
Fund which requested such Loan agrees to pay interest on such unpaid principal
or other amount from the date such amount becomes due until the date such amount
is paid in full, and after as well as before any entry of judgment thereon to
the extent permitted by law, payable on demand at a fluctuating rate per annum
equal to the Base Rate plus 2%.
(e) Anything herein to the contrary notwithstanding, the
obligations of any Fund to any Bank hereunder shall be subject to the limitation
that payments of interest shall not be required for any period for which
interest is computed hereunder, to the extent (but only to the extent) that
contracting for or receiving such payment by such Bank would be contrary to the
provisions of any law applicable to such Bank limiting the highest rate of
interest that may be lawfully contracted for, charged or received by such Bank,
and in such event the Fund shall pay such Bank interest at the highest rate
permitted by applicable law.
2.8. FEES. (a) ARRANGEMENT, AGENCY FEES. Subject to the
Allocation Notice requirements of SECTION 2.13(a), each Fund shall pay fees to
the Agents for their own accounts, as required by the letter agreement ("FEE
LETTER") among the Company, and the Agents, dated December 30, 1999.
(b) COMMITMENT FEES. Subject to the Allocation Notice
requirements of SECTION 2.13(a), each Fund shall pay to the Operations Agent for
the account of each Bank a commitment fee on the average daily unused portion of
such Bank's Commitments, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based upon the daily utilization for that
quarter as calculated by the Operations Agent, equal to 0.10% per annum;
provided, however, that Swing Loans shall not be deemed usage for the purpose of
calculating the Commitment Fee. Such commitment fee shall accrue from the date
of this Agreement to the Commitment Termination Date and shall be due and
payable quarterly on the fifteenth day of each January, April, July and October
commencing April 15, 2000 for the prior calendar quarter, with the final payment
to be made on the Commitment Termination Date. The commitment fees provided in
this subsection shall accrue at all times after the above-mentioned commencement
date, including at any time during which one or more conditions in ARTICLE IV
are not met.
2.9. COMPUTATION OF FEES AND INTEREST. (a) All computations of
fees and interest shall be made on the basis of a 360-day year and actual days
elapsed (which results in more interest being paid than if computed on the basis
of a 365- or 366-day year). Interest and fees shall accrue during each period
during which interest or such fees are computed from the first day thereof to
the last day thereof.
(b) Each determination of an interest rate by the Agent
shall be conclusive and binding on the relevant Fund and the Banks in the
absence of manifest error. The Operations Agent will, at the request of a
relevant Fund or any Bank, deliver to such Fund or Bank, as the case may be, a
statement showing the quotations used by the Operations Agent in determining any
interest rate and the resulting interest rate.
2.10. PAYMENTS. (a) All payments to be made by a Fund shall be
made without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all such payments shall be made to the Operations Agent for the
account of the Banks at the Operations Agent's Payment Office and shall be made
in Dollars and in immediately available funds no later than 10:00 a.m. (Pacific
time) on the date specified herein. The Operations Agent will promptly
distribute to each Bank its Pro Rata Share (or other applicable share as
expressly provided herein) of such payment in like funds as received. Any
payment received by the Operations Agent later than 10:00 a.m. (Pacific time)
shall be deemed to have been received on the following Business Day, and any
applicable interest or fee shall continue to accrue.
(b) Whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Operations Agent receives notice from a
Fund prior to the date on which any payment is due to the Banks that such Fund
will not make such payment in full as and when required, the Operations Agent
may assume that the Fund has made such payment in full to the Operations Agent
on such date in immediately available funds, and the Operations Agent may (but
shall not be so required), in reliance upon such assumption, distribute to each
Bank on such due date an amount equal to the amount then due such Bank. If and
to the extent the Fund has not made such payment in full to the Operations
Agent, each Bank shall repay to the Operations Agent on demand such amount
distributed to such Bank, together with interest thereon at the Federal Funds
Rate for each day from the date such amount is distributed to such Bank until
the date repaid.
2.11. PAYMENTS BY THE BANKS TO THE OPERATIONS AGENT. (a) Unless
the Operations Agent receives notice from a Bank on or prior to the Closing Date
or, with respect to any Borrowing after the Closing Date, at least one Business
Day prior to the date of such Borrowing, that such Bank will not make available
as and when required hereunder to the Operations Agent for the account of the
relevant Fund the amount of that Bank's Pro Rata Share of the Borrowing, the
Operations Agent may assume that each Bank has made such amount available to the
Operations Agent in immediately available funds on the Borrowing Date and the
Operations Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Fund on such date a corresponding amount. If
and to the extent any Bank shall not have made its full amount available to the
Operations Agent in immediately available funds and the Operations Agent in such
circumstances has made available to the relevant Fund such amount, that Bank
shall on the Business Day following such Borrowing Date make such amount
available to the Operations Agent, together with interest at the Federal Funds
Rate for each day during such period. A notice of the Operations Agent submitted
to any Bank with respect to amounts owing under this subsection (a) shall be
conclusive, absent manifest error. If such amount is so made available, such
payment to the Operations Agent shall constitute such Bank's Committed Loan on
the date of Borrowing for all purposes of this Agreement. If such amount is not
made available to the Operations Agent on the Business Day following the
Borrowing Date, the Operations Agent will notify the Fund of such failure to
fund, and upon demand by the Operations Agent, the relevant Fund shall pay such
amount to the Operations Agent for the Operations Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(b) The failure of any Bank to make any Committed Loan on
any Borrowing Date shall not relieve any other Bank of any obligation hereunder
to make a Committed Loan on such Borrowing Date, but no Bank shall be
responsible for the
failure of any other Bank to make the Committed Loan to be made by such other
Bank on any Borrowing Date.
2.12. SHARING OF PAYMENTS, ETC. If, other than as expressly
provided elsewhere herein, any Bank shall obtain on account of the Committed
Loans made by it any payment (whether voluntary, involuntary, through the
exercise of any right of set-off or otherwise) in excess of its Pro Rata Share,
such Bank shall immediately (a) notify the Operations Agent of such fact and (b)
purchase from the other Banks such participations in the Committed Loans made by
them as shall be necessary to cause such purchasing Bank to share the excess
payment pro rata with each of them; PROVIDED, HOWEVER, that if all or any
portion of such excess payment is thereafter recovered from the purchasing Bank,
such purchase shall to that extent be rescinded and each other Bank shall repay
to the purchasing Bank the purchase price paid therefor, together with an amount
equal to such paying Bank's ratable share (according to the proportion of (i)
the amount of such paying Bank's required repayment to the purchasing Bank to
(ii) the total amount so recovered from the purchasing Bank) of any interest or
other amount paid or payable by the purchasing Bank in respect of the total
amount so recovered. Each Fund agrees that any Bank so purchasing a
participation from another Bank may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off with respect
to such participation) as fully as if such Bank were the direct creditor of the
relevant Fund in the amount of such participation. The Operations Agent will
keep records (which shall be conclusive and binding in the absence of manifest
error) of participations purchased under this Section and will in each case
notify the Banks following any such purchases or repayments.
2.13. SOURCE OF REPAYMENT. (a) Notwithstanding any other
provision of this Agreement, the parties agree that the assets and liabilities
of each Fund are separate and distinct from the assets and liabilities of each
other Fund and that no Fund shall be liable or shall be charged for any debt,
obligation, liability, fee or expense arising under this Agreement, the Notes or
out of or in connection with any transaction other than one entered into by or
on behalf of itself. The Funds shall (i) as provided in SECTION 4.1(F), (ii) to
the extent feasible, at least five Business Days in advance of a date on which a
payment in respect of a debt, obligation, liability, fee or expense arising
hereunder (other than principal of or interest on a Loan) shall be due and
payable and (iii) upon request of the Administrative Agent, cause to be provided
to the Administrative Agent an Allocation Notice; PROVIDED, HOWEVER, should the
Funds fail to deliver to the Administrative Agent an Allocation Notice with
respect to such amounts within five Business Days following a request for the
same by the Administrative Agent, the Funds shall be liable therefor to the
Administrative Agent and/or the Banks in the proportion set forth in the
Allocation Notice most recently delivered to the Administrative Agent.
(b) Nothing in this SECTION 2.13 shall affect the Banks'
rights against Company Persons as provided in SECTION 1.5.
2.14. SWING LOAN FACILITY. Subject to the terms and conditions
set forth in this Agreement, during the period from the date hereof to but not
including the
Commitment Termination Date, the Swing Lender agrees to make available to each
Fund a loan facility (the "Swing Loan Facility") under which the Swing Lender
may from time to time in its sole discretion make loans (the "Swing Loans") on
any Business Day to the Funds, as may be requested by the Funds in accordance
with SECTION 2.17 hereof. At no time shall (i) the aggregate outstanding
principal amount of all Swing Loans made to the Funds hereunder exceed the Swing
Loan Facility Amount, (ii) the aggregate amount of all Committed Loans and Swing
Loans exceed the Commitment Amount, (iii) the aggregate amount of Committed
Loans and Swing Loans to any Fund exceed such Fund's Borrowing Base or (iv) the
Loans made by any Bank exceed its Commitment. Within the limits of the
provisions of this Article II, each Fund may borrow, prepay pursuant to SECTION
2.15 and reborrow under this SECTION 2.14. Swing Loans shall bear interest at
the same rate applicable to the Committed Loans.
2.15. REPAYMENT OF SWING LOANS. Notwithstanding any other
provision of this Agreement, the principal amount of each Swing Loan to a Fund
shall be repaid by such Fund upon the earlier to occur of (i) seven (7) Business
Days after the date such Swing Loan is made, or (ii) the Commitment Termination
Date. Any Fund may repay the Swing Loans on any Business Day in whole or in a
minimum aggregate amount of $1,000,000 or an integral multiple of $1,000,000 in
excess thereof upon delivery of a Repayment Notice prior to 9:00 a.m. (Pacific
time) on such Business Day.
2.16. DISCRETIONARY FACILITY. The Funds acknowledge and agree
that the Swing Lender has no obligation to make Swing Loans hereunder, and that
the decision whether or not to make a Swing Loan requested by a Fund hereunder
is within the sole and exclusive discretion of the Swing Lender.
2.17. NOTICE OF SWING LOAN. Not later than 12:00 p.m., Pacific
time, on the Business Day on which a proposed Swing Loan is to be made, the
Swing Lender must have received a Loan Request by facsimile that a Swing Loan be
made on that Business Day, stating that such Loan shall be a Swing Line Loan,
and specifying the amount of the requested Swing Line Loan.
2.18. FAILURE TO REPAY SWING LOANS. (i) If the outstanding
principal amount of any Swing Loan is not repaid when due pursuant to the terms
of this Agreement, each Bank (other than the Swing Lender) irrevocably agrees
that it will, upon receipt of a notice from the Swing Lender, promptly transfer
to the Swing Lender, in immediately available funds, an amount equal to such
Bank's Pro Rata Share of the then aggregate outstanding principal amount of all
Swing Loans, and thereafter such Lender's Pro Rata Share of such Loans shall
constitute a Committed Loan made by such Lender hereunder.
(ii) If for any reason a Committed Loan cannot be made pursuant
to the preceding clause (i) upon the occurrence of any Event of Default, the
Swing Lender shall have the option, which shall be exercisable by the Swing
Lender in its sole discretion, to sell and transfer to each Bank, pursuant to
the terms and conditions set forth herein, an undivided interest and
participation, to the extent of such Bank's Pro Rata Share, in all outstanding
Swing Loans. Forthwith upon notice from the Swing Lender to the Banks
that the Swing Lender has elected to exercise the option set forth in the
immediately preceding sentence, the Swing Lender shall be deemed irrevocably and
unconditionally to have sold and transferred to each Bank without recourse and
each Bank shall have deemed to have irrevocably and unconditionally purchased
and received, an undivided interest and participation, to the extent of such
Bank's Pro Rata Share, in all outstanding Swing Loans. Each Bank shall promptly
pay to the Swing Lender in immediately available funds an amount equal to such
Bank's Pro Rata Share of the outstanding principal amount of such Swing Loans.
Any amount payable to the Swing Lender pursuant to this SECTION 2.18(II) and not
paid upon notice of such payment received from the Swing Lender shall bear
interest until paid at the Base Rate. If the Lenders make any payment in respect
of Swing Loans as contemplated by this SECTION 2.18(II) and thereafter the Swing
Lender receives a payment on account of any such Swing Loan, the Swing Lender
shall promptly pay to each Bank, which funded its participation therein, an
amount equal to such Bank's Pro Rata Share thereof. The obligation of each Bank
to make payments under this SECTION 2.18(II) shall be unconditional and
irrevocable and shall be made under all circumstances. If any payment received
on account of any Swing Loan and distributed to a Bank as a participant under
this SECTION 2.18(II) is thereafter recovered from the Swing Lender in
connection with any bankruptcy or insolvency proceeding relating to the
applicable Fund or otherwise, each Bank which received such distribution shall,
upon demand by the Swing Lender, repay to the Swing Lender such Bank's Pro Rata
Share of the amount so recovered together with an amount equal to such Bank's
Pro Rata Share (according to the proportion of (A) the total of such Lender's
required repayment to (B) the total amount so recovered) of any interest or
other amount paid or payable by the Swing Lender in respect of the total amount
so recovered.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1. TAXES. (a) Any and all payments by a Fund to each Bank or
the Operations Agent under this Agreement and any other Credit Document shall be
made free and clear of, and without deduction or withholding for, any Taxes. In
addition, each Fund shall pay all Other Taxes.
(b) Each Fund agrees to indemnify and hold harmless each
Bank and the Operations Agent for the full amount of Taxes or Other Taxes in
connection with a payment by it (including any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable by it under this Section) paid by the Bank
or the Operations Agent and any liability (including penalties, interest,
additions to tax and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Payment under this indemnification shall be made within 30 days after the date
the Bank or the Operations Agent makes written demand therefor.
(c) If a Fund shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Bank or the Operations Agent, then:
(i) the sum payable shall be increased as necessary
so that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums
payable under this Section), such Bank or the Operations Agent, as the
case may be, receives an amount equal to the sum it would have received
had no such deductions or withholdings been made;
(ii) the Fund shall make such deductions and
withholdings;
(iii) the Fund shall pay the full amount deducted
or withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) the Fund shall also pay to the Operations
Agent for the account of such Bank, at the time interest is paid, all
additional amounts which the respective Bank specifies as necessary to
preserve the after-tax yield the Bank would have received if such Taxes
or Other Taxes had not been imposed but without duplication as to
clause (i).
(d) Within 30 days after the date of any payment by a
Fund of Taxes or Other Taxes, the Fund shall furnish the Operations Agent the
original or a certified copy of a receipt evidencing payment thereof or other
evidence of payment satisfactory to the Operations Agent.
(e) If a Fund is required to pay additional amounts to any
Bank or the Operations Agent pursuant to subsection (c) of this Section, then
such Bank shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment by the Fund which may thereafter accrue,
if such change in the judgment of such Bank is not otherwise disadvantageous to
such Bank.
3.2 CAPITAL ADEQUACY REGULATION. If any Bank shall have
determined that (i) the introduction of any Capital Adequacy Regulation, (ii)
any change in any Capital Adequacy Regulation, (iii) any change in the
interpretation or administration of any Capital Adequacy Regulation by any
central bank or other Governmental Authority charged with the interpretation or
administration thereof or (iv) compliance by the Bank (or its Lending Office) or
any corporation controlling the Bank with any Capital Adequacy Regulation
affects or would affect the amount of capital required or expected to be
maintained by the Bank or any corporation controlling the Bank and (taking into
consideration such Bank's or such corporation's policies with respect to capital
adequacy and such Bank's desired return on capital) determines that the amount
of such capital is increased as a consequence of its Commitment, Loans, credits
or other obligations under this Agreement, then, upon demand of such Bank to the
affected Fund through the Operations Agent, the affected Fund shall pay to the
Bank, from time to time as specified by the Bank, additional amounts sufficient
to compensate the Bank for such increase. If all the Funds are so affected, the
payments by the Funds shall be subject to the Allocation Notice requirements
under SECTION 2.13(A).
3.3. CERTIFICATES OF BANKS. Any Bank claiming reimbursement or
compensation under this ARTICLE III shall deliver to the affected Fund (with a
copy to the Operations Agent) a certificate setting forth in reasonable detail
the amount payable to the Bank hereunder, and such certificate shall be
conclusive and binding on such Fund in the absence of manifest error.
3.4. SUBSTITUTION OF BANKS. Upon the receipt by a Fund from any
Bank (an "AFFECTED BANK") of a claim for compensation under SECTION 3.2, such
Fund may: (i) request the Affected Bank to use its best efforts to obtain a
replacement bank or financial institution satisfactory to such Fund to acquire
and assume all or a ratable part of all of such Affected Bank's Loans and
Commitment (a "REPLACEMENT BANK"); (ii) request one or more of the other Banks
to acquire and assume all or part of such Affected Bank's Loans and Commitment
(it being understood that no such other Bank shall be in any way required to
effect any such acquisition and assumption); (iii) designate a Replacement Bank
or (iv) upon three Business Days' notice to the Agent, repay all Loans and other
amounts due to such Bank, terminate the Commitment of such Bank and reduce the
Commitment Amount by the amount of such Bank's Commitment. Any such designation
of a Replacement Bank under clause (i) or (iii) shall be subject to the prior
written consent of the Agents (which consent shall not be unreasonably withheld)
and payment in full of all amounts due and owing hereunder to the Affected Bank.
3.5. SURVIVAL. The agreements and obligations of the Funds in
this ARTICLE III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS TO BORROWING
4.1. CONDITIONS OF INITIAL LOAN. This Agreement shall take
effect from the first day that the Administrative Agent shall have received
counterparts hereof signed by the Company on behalf of each of the Funds, the
Administrative Agent and the Banks, and each of the conditions set forth in this
SECTION 4.1 has been waived by the Administrative Agent and each Bank or met.
(a) The Agents shall have received from the Company a
certificate, dated the date hereof, of its Secretary or Assistant Secretary
as to
(i) resolutions of its board of trustees then in full
force and effect authorizing the execution, delivery and performance of
this Agreement, the Notes and each other Credit Document to be executed
by it;
(ii) the incumbency and signatures of those of its
officers or agents authorized to act with respect to this Agreement,
the Notes and each other Credit Document executed by it;
(iii) the Company's valid existence as evidenced by a
certificate issued by the secretary of state and appended to the state
of its relevant certificate of its Secretary or Assistant Secretary;
and
(iv) the fact that the agreements delivered by the Funds
pursuant to SECTION 4.1(D) constitute all such agreements between the
Funds and the Adviser;
upon which certificates the Administrative Agent and each Bank may conclusively
rely until they shall have received a further certificate from the Company
cancelling or amending such prior certificate.
(b) The Administrative Agent shall have received an
opinion, dated the date hereof and addressed to the Agents and all Banks, from
Xxxxxxxx Ronon Xxxxxxx & Xxxxx, L.L.P., counsel to the Funds, substantially in
the form of EXHIBIT 4.1(B)-1, which the Company hereby expressly authorizes and
instructs such counsel to prepare and deliver.
(c) The Administrative Agent shall have received evidence
of payment of all accrued and unpaid fees, costs and expenses to the extent then
due and payable on the Closing Date, together with Attorney Costs of the
Administrative Agent to the extent invoiced prior to or on the Closing Date,
plus such additional amounts of Attorney Costs as shall constitute the
Administrative Agent's reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude final settling of accounts between the Funds and
the
Administrative Agent), including any such costs, fees and expenses arising
under or referenced in SECTION 2.8(A) and those then due and payable pursuant to
SECTION 9.4.
(d) The Administrative Agent shall have received copies of
each investment advisory agreement between the Company and the Adviser.
(e) The Agents shall have received an initial Borrowing
Base Certificate for each Fund.
(f) The Administrative Agent shall have received an
initial Allocation Notice.
(g) The Administrative Agent shall have received copies of
the most recent prospectus and statement of additional information for each
Fund.
4.2. ALL BORROWINGS. The obligation of each Bank to fund any Loan on
the occasion of any Borrowing (including the initial Borrowing) or of the Swing
Lender to fund any Swing Loan (including the initial Swing Loan) by a Fund shall
be subject to the satisfaction of each of the conditions precedent set forth in
this SECTION 4.2.
(a) No Default shall have occurred and be continuing with
respect to the borrowing Fund.
(b) The representations and warranties of the borrowing
Fund contained in ARTICLE V (except to the extent such representations and
warranties relate solely to an earlier date, in which case they shall be true
and correct as of such earlier date) shall be true and correct in all material
respects on and as of the date of such Borrowing, both immediately before and
after giving effect to such Borrowing, as if then made.
(c) Except as disclosed by the borrowing Fund to the Agent
and the Banks pursuant to SECTION 5.7, no labor controversy, litigation,
arbitration or governmental investigation or proceeding shall be pending and no
development shall have occurred with respect to such matters, or, to the
knowledge of such Fund, threatened against it, which, in the reasonable opinion
of the Banks, might materially affect the Fund's consolidated business,
operations, assets, revenues, properties or prospects or which purports to
affect the legality, validity or enforceability of this Agreement, the Notes or
any other Credit Document.
(d) The Operations Agent shall have received a Loan
Request for such Borrowing. Each of the delivery of a Loan Request and the
acceptance by the relevant Fund of the proceeds of such Borrowing shall
constitute a representation and warranty by such Fund that on the date of such
Borrowing (both immediately before and after giving effect to such Borrowing and
the application of the proceeds thereof) or continuation or conversion, as the
case may be, the statements made in SECTIONS 4.2(a), (b), (c), and (f) are true
and correct.
(e) The Operations Agent shall have received with
respect to the borrowing Fund a duly executed FRB Form FR U-1 as required
pursuant to FRB Regulation U (12 C.F.R. Section 221.1 et seq.), in form and
substance satisfactory to the Operations Agent and its counsel, together with
all information requested by the Operations Agent in connection therewith,
including updates of information, if any, required by such Regulation U.
(f) Both before and after the Loan in question, the
borrowing Fund's Asset Coverage Ratio
shall be at least 10 to 1.
Any instrument, agreement or other document to be received by an Agent
pursuant to this ARTICLE IV, and any other condition precedent required to be
met or satisfied under this ARTICLE IV, shall be in form and substance
reasonably satisfactory to each Agent and each Bank and in sufficient copies for
each Bank.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks and the Agents to enter into this
Agreement and to make Loans hereunder, each Fund and, to the extent hereinafter
set forth, the Company, represents and warrants individually and not jointly
unto the Agents and each Bank with respect to itself as set forth in this
ARTICLE V. The representations and warranties contained in this ARTICLE V shall
be deemed to be repeated each time that a Fund requests that a Loan be made as
provided in ARTICLE IV.
5.1. EXISTENCE. The Company is an open-end management
investment company within the meaning of the Act and is duly organized, validly
existing and in good standing under the laws of the state of its organization.
Each Fund is a series of shares of beneficial interest in the Company (which
shares have been and will be duly authorized, validly issued, fully paid and
non-assessable) and legally constitutes a fund or portfolio permitted to be
marketed to investors pursuant to the provisions of the Act.
5.2. AUTHORIZATION. The Company is duly authorized to execute
and deliver this Agreement and the Notes of each of the Funds and, so long as
this Agreement shall remain in effect, each Fund will continue to be duly
authorized to borrow monies hereunder on its own behalf and to perform its
obligations under this Agreement and its Notes. The execution, delivery and
performance by the Company and the Funds of this Agreement and the Notes and the
Borrowings of each Fund do not and will not require any consent or approval of
or registration with any governmental agency or authority.
5.3. NO CONFLICTS. The execution, delivery and performance by the
Company and each Fund of this Agreement and the Notes do not and, so long as
this Agreement shall remain in effect with respect to them, will not (i)
conflict with any
provision of law, (ii) conflict with the Organization Documents of the Company,
(iii) conflict with any material agreement binding upon them, (iv) conflict with
the Fund's most recent prospectus or its most recent statement of additional
information, (v) conflict with any court or administrative order or decree
applicable to them or (vi) require or result in the creation or imposition of
any Lien on any of the Fund's assets.
5.4. VALIDITY AND BINDING EFFECT. This Agreement is, and the
Notes when duly executed and delivered will be, the legal, valid and binding
obligation of each Fund, enforceable against it in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, receivership, fraudulent conveyance, fraudulent transfer,
moratorium or other similar laws of general application affecting the
enforcement of creditors' rights or by general principles of equity limiting the
availability of equitable remedies.
5.5. NO DEFAULT. No Fund is in default under any agreement or
instrument to which it is a party or by which any of its respective properties
or assets is bound or affected, other than minor defaults that could not
reasonably be expected to result in a Material Adverse Change. To the best of
each Fund's knowledge, no Default with respect to it has occurred and is
continuing.
5.6. FINANCIAL STATEMENTS. With respect to each Fund, its most
recent audited statement of assets and liabilities and its most recent
semi-annual asset statement, copies of which have been or will be furnished to
the Banks, have been prepared in conformity with GAAP applied on a basis
consistent with that of the preceding Fiscal Year or period and present fairly
its financial condition as at such dates and the results of its operations for
the periods then ended, subject (in the case of the interim financial statement)
to year-end audit adjustments. Since the date of its most recent statement of
assets and liabilities and such semi-annual asset statement, there has been no
Material Adverse Change.
5.7. LITIGATION. With respect to each Fund, no claims,
litigation, arbitration proceedings or governmental proceedings that could
reasonably be expected to result in a Material Adverse Change are pending or, to
the best of its knowledge, threatened against or are affecting it. Other than
any liability incident to such claims, litigation or proceedings or provided for
or disclosed in the financial statements referred to in SECTION 5.6, it has no
contingent liabilities which are material to it other than those incurred in the
ordinary course of business.
5.8. LIENS. With respect to each Fund, none of its property,
revenues or assets is subject to any Lien, except (i) Liens in favor of the
Banks, if any, (ii) Liens for current Taxes not delinquent or Taxes being
contested in good faith and by appropriate proceedings and as to which such
reserves or other appropriate provisions as may be required by GAAP are being
maintained, (iii) Liens in connection with the payment of initial and variation
margin in connection with authorized futures and options transactions and
collateral arrangements with respect to options, futures contracts, options on
futures contracts, when issued or delayed delivery securities or other
authorized investments, (iv)
Liens arising under any custodian agreement to which it or the Company is a
party and (v) Liens in connection with reverse repurchase transactions.
5.9. PARTNERSHIPS. With respect to each Fund, it is not a
general partner or joint venturer in any partnership or joint venture.
5.10. PURPOSE. With respect to each Fund, the proceeds of the
Loans will be used by it for temporary liquidity purposes, which purposes are
permitted under the Act and by its prospectus and statement of additional
information. Neither the making of any Loan nor the use of the proceeds thereof
will violate or be inconsistent with the provisions of Federal Reserve Board
Regulations T, U or X. It acknowledges that Loans made to it may be deemed by
the Federal Reserve Board to be "purpose loans" under Regulation U because of
the status of each Fund as an investment company (or the functional equivalent
thereof).
5.11. COMPLIANCE AND GOVERNMENT APPROVALS. Each Fund and the
Company are in compliance with all statutes and governmental rules and
regulations applicable to them, including, without limitation, the Act. No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or other person is required for
the due execution, delivery or performance by the Company and the Funds of this
Agreement, the Notes or any of the other Credit Documents.
5.12. PENSION AND WELFARE PLANS. Neither the Company nor any
Fund has established or maintained, or is liable under, any Plan.
5.13. TAXES. The Company and each Fund has filed all tax returns
that are required to have been filed and has paid, or made adequate provisions
for the payment of, all of its Taxes that are due and payable, except such
Taxes, if any, as are being contested in good faith and by appropriate
proceedings and as to which such reserves or other appropriate provisions as may
be required by GAAP have been maintained. Neither the Company nor any Fund is
aware of any proposed assessment against it for additional Taxes (or any basis
for any such assessment) which might be material in amount to it. The Company
and the Funds have substantially complied with all requirements of the Code
applicable to regulated investment companies so as to be relieved of federal
income tax on net investment income and net capital gains distributed to
shareholders.
5.14. SUBSIDIARIES; INVESTMENTS. Neither the Company nor any
Fund has Subsidiaries or equity investments or any interest in any other Person
other than portfolio securities (including investment company securities) which
may have been acquired in the ordinary course of business.
5.15. FULL DISCLOSURE. No representation or warranty contained
in this Agreement or in any other document or instrument furnished by the
Company or any Fund to the Banks in connection herewith contains any untrue
statement of any material fact as of the date when made or omits to state any
material fact necessary to make the
statements herein or therein not misleading as of the date when made in light
of the circumstances in which the same were made.
5.16. INVESTMENT POLICIES. Each Fund's assets are being invested
substantially in accordance with the investment policies and restrictions set
forth in each of its most recent prospectus and its most recent statement of
additional information.
5.17. TAX STATUS. The Company has taken all steps reasonably
necessary to maintain its status as a regulated investment company under the
Code with respect to net investment income and net capital gains.
5.18. STATUS OF LOANS. Each Fund's obligation in connection with
the repayment of any Loans made to it hereunder shall at all times constitute
its unconditional Indebtedness and will rank at least PARI PASSU in priority of
payment with all of its other present and future unsecured and unsubordinated
Indebtedness.
ARTICLE VI
COVENANTS
From the date of this Agreement and thereafter until the expiration or
termination of the Commitments and until all Obligations have been paid or
performed in full, each Fund and the Company shall perform the obligations made
applicable to it in this ARTICLE VI.
6.1. FINANCIAL STATEMENTS AND OTHER REPORTS. Each Fund shall
deliver to the Operations Agent, with sufficient copies for each Bank:
(a) As soon as available and in any event within 60 days
after the end of each of its Fiscal Years, a copy of its annual audited
statement of assets and liabilities, including a statement of
investments, prepared in conformity with GAAP and certified by an
independent certified public accountant who, in the commercially
reasonable judgment of the Majority Banks, shall be satisfactory to the
Majority Banks, together with a certificate from such accountant (i)
acknowledging to the Banks such accountant's understanding that the
Banks are relying on such statement of assets and liabilities, (ii)
containing a computation of, and showing compliance with, the financial
ratio contained in SECTION 6.12 and (iii) to the effect that, in making
the examination necessary for the signing of such statement of assets
and liabilities, such accountant has not become aware of any Default
that has occurred and is continuing, or if such accountant has become
aware of any such event, describing it and the steps, if any, being
taken to cure it;
(b) Within 60 days after the end of the first six months
of its Fiscal Year, a copy of its published semi-annual asset
statement, prepared in conformity with GAAP;
(c) Within 15 days after the end of each calendar quarter
with respect to each Fund to which Loans are outstanding, (i) a
certificate substantially in the form of EXHIBIT 6.1 ("BORROWING BASE
CERTIFICATE") setting forth its borrowing base (as calculated in the
manner contemplated by the form of Borrowing Base Certificate)
("BORROWING BASE") and (ii) a certificate signed by an Authorized
Officer certifying that, to the best of such Person's knowledge, no
Default has occurred and is continuing or, if an Event of Default has
occurred and is continuing, the steps being taken to remedy the same;
(d) (i) Within 15 days following the filing thereof, any
preliminary proxy materials filed with the Securities and Exchange
Commission and (ii) within 15 days after the same become available,
copies of its current prospectus and statement of additional
information (marked to show changes from the prospectus and statement
of additional information most recently delivered to the Banks), EXCEPT
that if its investment policies are changed materially (including any
change in its ability to borrow hereunder), copies of a revised
prospectus (or a prospectus supplement) and statement of additional
information (marked to show changes from the prospectus (or prospectus
supplement) and statement of additional information most recently
delivered to the Banks) reflecting any such changes shall be provided
to the Agent within 15 days after the same become available; and
(e) Promptly from time to time such other reports or
information as any of the Banks may reasonably request.
6.2. NOTICES. Each Fund shall notify the Banks in writing of
any of the following immediately upon learning of the occurrence thereof,
describing the same and, if applicable, stating the steps being taken by the
Person(s) affected with respect thereto:
(a) the occurrence of a Default;
(b) the institution of any litigation, arbitration
proceeding or governmental proceeding which is likely to result in a
Material Adverse Change with respect to such Fund;
(c) the entry of any judgment or decree against it if the
aggregate amount of all judgments and decrees then outstanding against
it exceeds 5% of its Net Asset Value after deducting (i) the amount
with respect to which it is insured and with respect to which the
insurer has assumed responsibility in writing and (ii) the amount for
which it is otherwise indemnified if the terms of such indemnification
and the Person providing such indemnification are satisfactory to the
Majority Banks;
(d) the occurrence of a change of its name (whether of its
legal name or a "d/b/a" designation). The Company, on behalf of each of
the affected Fund(s),
shall promptly execute and deliver to each Bank a new Note (with
respect to any Loans then evidenced by Notes) for each such Fund
executed in its new name, together with such other documents in
connection therewith as the Banks shall reasonably request; and
(e) any final action having been taken by the board of
trustees of the Company of a change in such Fund's Adviser,
distributor, administrator, custodian, fund accountant or auditor;
PROVIDED that a mailing to shareholders with respect to any of the
foregoing shall not be deemed to be sufficient notice hereunder.
6.3. EXISTENCE. Each Fund, except as specified in SECTION 6.11
(a), shall maintain and preserve its existence as a registered investment
company, within the meaning of the Act, and maintain and preserve all rights,
privileges, licenses, copyrights, trademarks, trade names, franchises and other
authority to the extent material and necessary for the conduct of its business
in the ordinary course, unless any such Fund has no Loans outstanding and has
irrevocably notified the Administrative Agent (which shall thereupon promptly
notify the Banks) that it shall not request any Loans hereunder.
6.4. NATURE OF BUSINESS. Each Fund shall continue in, and limit
its operations to, the business of an open-end management investment company,
within the meaning of the Act, and maintain in full force and effect at all
times all governmental licenses, registrations, permits and approvals necessary
for the continued conduct of its business, including, without limitation, its
registration with the Securities and Exchange Commission under the Act as an
open-end investment company.
6.5. BOOKS, RECORDS AND ACCESS. Each Fund shall maintain
complete and accurate books and records in which full and correct entries in
conformity with GAAP shall be made of all transactions in relation to its
business and activities; upon reasonable notice, the Fund shall permit access by
the Banks to its books and records during normal business hours and permit the
Banks to make copies of such books and records.
6.6. INSURANCE. The Company and each Fund shall maintain in
full force and effect insurance to such extent and against such liabilities as
is commonly maintained by companies similarly situated, including, but not
limited to (i) such fidelity bond coverage as shall be required by Rule 17g-1
promulgated under the Act or any similar or successor provision and (ii) errors
and omissions, director and officer liability and other insurance against such
risks and in such amounts (and with such co-insurance and deductibles) as is
usually carried by other companies of established reputation engaged in the same
or similar businesses and similarly situated and will, upon request of the
Administrative Agent, furnish to the Banks a certificate of an Authorized
Officer setting forth the nature and extent of all insurance maintained by the
Company or such Fund in accordance with this Section.
6.7. INVESTMENT POLICIES AND RESTRICTIONS. No Fund, without
prior written notice to the Administrative Agent of at least two weeks, shall
rescind, amend or modify
any investment policy described as "fundamental" in any prospectus or any
registration statement(s) that may be on file with the Securities and Exchange
Commission with respect thereto (collectively herein, a "PROPOSED CHANGE"). If,
in the reasonable judgment of the Majority Banks, such proposed change will
result in a change in the Banks' analysis of the creditworthiness of the
affected Fund, the Administrative Agent shall notify the relevant Fund of such
decision; thereafter, if such proposed change is implemented with respect to
such Fund, the Banks may terminate their Commitments to lend to such Fund, and
all Loans outstanding to such Fund shall become immediately due and payable.
(b) Each Fund's investment in any of its assets shall be
made in accordance with its investment policies and restrictions set forth in
its most recent prospectus and statement of additional information.
6.8. TAXES. The Company and each Fund shall pay when due all of
its Taxes, unless and only to the extent that such Taxes are being contested in
good faith and by appropriate proceedings and it shall have set aside on its
books such reserves or other appropriate provisions therefor as may be required
by GAAP. The Company and the Funds shall at all times comply with all
requirements of the Code applicable to regulated investment companies, to such
effect as not to be subject to federal income taxes on net investment income and
net capital gains distributed to its shareholders.
6.9. COMPLIANCE. The Company and each Fund shall comply in all
material respects with all statutes and governmental rules and regulations
applicable to it, including, without limitation, the Act.
6.10. PENSION PLANS. Neither the Company nor any Fund will enter
into, or incur any liability relating to, any Plan without the prior written
consent of the Administrative Agent and the Banks.
6.11. MERGER, PURCHASE AND SALE. Neither the Company nor any
Fund shall:
(a) be a party to any merger or consolidation; PROVIDED,
HOWEVER, that the Company or any Fund can merge or consolidate with any
other Person in accordance with 17 C.F.R. Section 270.17a-8 if (i) such
merger or consolidation complies in all material respects with the
requirements of 17 C.F.R. Section 270.17a-8 and all rules promulgated
in connection therewith, (ii) the surviving entity assumes all of the
obligations to the Banks of the merging or consolidating Company and/or
Funds prior to such merger or consolidation and (iii) in the good faith
judgment of all the Banks the financial condition and investment
policies and restrictions of the surviving entity are not fundamentally
different from those of the merging or consolidating Company and/or
Funds prior to such merger or consolidation;
(b) except as permitted by SECTION 6.11(a) and except for
sales or other dispositions of portfolio securities in the ordinary
course of its business or to meet
shareholder redemption requests, sell, transfer, convey, lease or
otherwise dispose of all or any part of its assets; PROVIDED, HOWEVER,
that any Fund or the Company can sell substantially all of its assets
to another Person in accordance with 17 C.F.R. Section 270.17a-8 if
(i) such sale complies in all material respects with the requirements
of 17 C.F.R. Section 270.17a-8 and all rules promulgated in connection
therewith, (ii) the purchasing entity assumes all obligations to the
Banks of the selling Fund prior to such sale and (iii) in the good
faith judgment of all the Banks, the financial condition and
investment policies and restrictions of the purchasing entity are not
fundamentally different from those of the selling Fund prior the to
asset sale; or
(c) except as permitted by SECTION 6.11(a), purchase or
otherwise acquire all or substantially all the assets of any Person
without the review and consent thereto of all the Banks, which consent
shall not be unreasonably withheld.
6.12. ASSET COVERAGE RATIO. Each Fund shall not at any time
permit its Asset Coverage Ratio to be less than 10 to 1 or such other more
restrictive ratio as may be set forth in any prospectus with respect to such
Fund. In calculating the ratio set forth in this SECTION 6.12, a Fund may not
treat as an asset Indebtedness owing to such Fund by any investment company
advised by the Adviser unless the Asset Coverage Ratio of such investment
company is at least 10 to 1.
6.13. LIENS. No Fund shall create or permit to exist any Lien
with respect to any property, revenues or assets now owned or hereafter acquired
by it, except (i) Liens in favor of the Banks, if any, (ii) Liens for current
Taxes not delinquent or Taxes being contested in good faith and by appropriate
proceedings and as to which such reserves or other appropriate provisions as may
be required by GAAP are being maintained, (iii) Liens incurred in the ordinary
course of business in connection with authorized futures and options
transactions and collateral arrangements with respect to options, futures
contracts, options on futures contracts, when issued or delayed delivery
securities or other authorized investments, (iv) Liens arising under any
custodian agreement to which the Company is a party and (v) Liens in connection
with reverse repurchase agreements; PROVIDED, HOWEVER, the value of any of its
assets subject to a Lien shall be excluded from calculation of its Borrowing
Base.
6.14. GUARANTIES. No Fund shall become or be a guarantor or
surety of, or otherwise become or be responsible in any manner (whether by
agreement to purchase any obligations, stock, assets, goods or services, or to
supply or advance any funds, assets, goods or services, or otherwise) with
respect to, any undertaking of any other Person, except for the endorsement, in
the ordinary course of collection, of instruments payable to it or its order.
6.15. OTHER AGREEMENTS. Neither the Company nor any Fund shall enter
into any agreement containing any provision that would be violated or breached
by
performance of its obligations hereunder or under any instrument or document
delivered or to be delivered by it hereunder or in connection herewith.
6.16. TRANSACTIONS WITH RELATED PARTIES. No Fund shall enter
into or be a party to any transaction or arrangement, including, without
limitation, the purchase, sale, loan, lease or exchange of property or the
rendering of any service, with any Related Party, except in the ordinary course
of and pursuant to the reasonable requirements of its business and upon fair and
reasonable terms no less favorable to it than would be obtainable in a
comparable arm's-length transaction with a Person not a Related Party, PROVIDED
that any such transaction must be made in substantial compliance with Section 17
of the Act or an exemption therefrom.
6.17. OTHER INDEBTEDNESS. No Fund shall incur or permit to exist
any Indebtedness, other than (i) the Loans; (ii) Indebtedness owing to its
custodian that will not exceed 10% of its then-current Net Asset Value; and
(iii) reverse repurchase transactions in an amount not exceeding that permitted
by the Fund's investment policies and restrictions.
6.18. CHANGES TO ORGANIZATION DOCUMENTS, ETC. Neither the
Company nor any Fund shall make or permit to be made any material changes to its
Organization Documents without the prior written consent of the Majority Banks.
6.19. VIOLATION OF INVESTMENT RESTRICTIONS, ETC. No Fund shall
violate or take any action which would result in a violation of any of the
investment restrictions or fundamental investment policies of such Fund as from
time to time in effect.
6.20. PROCEEDS OF LOANS. Each Fund shall utilize the proceeds of
each Loan made to it to provide temporary liquidity funding allowed under the
Act. None of the proceeds of any Loan shall be used directly for the purpose,
whether immediate, incidental or ultimate, of acquiring any "margin stock"
within the meaning of Regulation U.
6.21. SERVICE PROVIDERS TO FUNDS. No Fund shall change its
auditor except to another "Big 5" accounting firm unless the Majority Banks
provide their prior written consent to such change, which consent shall not be
withheld by the Majority Banks unless, based upon their reasonable judgment, the
Majority Banks in good faith conclude that such change will result in a change
in the creditworthiness of such Fund.
6.22. OUTSTANDING LOANS. No Fund shall have Loans outstanding
for a period in excess of 30 consecutive days.
ARTICLE VII
EVENTS OF DEFAULT
7.1. EVENTS OF DEFAULT. Each of the following shall constitute
an Event of Default with respect to a Fund under this Agreement (it being
understood that an Event of Default with respect to a Fund shall not constitute
an Event of Default with respect to any other Fund):
(a) Default in payment by a Fund (i) when and as
required to be paid herein of any amount of principal of any Loan or
(ii) within five days after the same becomes due of any interest, fee
or any other amount payable hereunder or under any other Credit
Document.
(b) Default by a Fund in the payment when due,
whether by acceleration or otherwise (subject to any applicable grace
period), of any Indebtedness of, or guaranteed by, such Fund in excess
of 5% of such Fund's then-current Net Asset Value.
(c) Any event or condition shall occur that results
in the acceleration of the maturity of any Indebtedness of, or
guaranteed by, a Fund or enables the holder or holders of such other
Indebtedness or any trustee or agent for such holders (any required
notice of default having been given and any applicable grace period
having expired) to accelerate the maturity of such other Indebtedness
in excess of 5% of such Fund's then-current total Net Asset Value.
(d) Default by a Fund in the payment when due,
whether by acceleration or otherwise, or in the performance or
observance (subject to applicable grace periods, if any, having
expired) of (i) any obligation or agreement of such Fund to or with a
Bank (other than any obligation or agreement of such Fund hereunder or
under such Fund's Notes) or (ii) any material obligation or agreement
of such Fund to or with any other Person, except only to the extent
that the existence of any such default is being contested by such Fund
in good faith and by appropriate proceedings and such Fund shall have
set aside on its books such reserves or other appropriate provisions
therefor as may be required by GAAP, PROVIDED that the amount of such
obligation arising from any default is in excess of 5% of such Fund's
then-current total Net Asset Value.
(e) A Fund (i) ceases or fails to be solvent, or
generally fails to pay, or admits in writing its inability to pay, its
debts as they become due, subject to applicable grace periods, if any,
whether at stated maturity or otherwise; (ii) voluntarily ceases to
conduct its business in the ordinary course; (iii) commences
any Insolvency Proceeding with respect to itself; or (iv) takes any
action to effectuate or authorize any of the foregoing.
(f) (i) Any involuntary Insolvency Proceeding is
commenced or filed against a Fund, or any writ, judgment, warrant of
attachment, execution or similar process is issued or levied against a
substantial part of its assets, and any such proceeding or petition
shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully
bonded within 60 days after commencement, filing or levy; (ii) a Fund
admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under
non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) it
acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor) or
other similar Person for itself or a substantial portion of its
property or business.
(g) A Fund shall default in the performance of its
agreement under SECTION 6.4, 6.7, 6.11 or 6.12.
(h) A Fund shall default in the performance of its
other agreements herein set forth (and not constituting an Event of
Default under any of the other subsections of this SECTION 7.1), and
such default shall continue for 30 days (or three Business Days in the
case of the agreement contained in the last sentence of the definition
of "Total Assets") after notice thereof to such Fund from the Agent.
(i) Any representation or warranty made by a Fund
herein, or in any schedule, statement, report, notice, certificate or
other writing furnished by it on or as of the date as of which the
facts set forth therein are stated or certified, is untrue or
misleading in any material respect when made or deemed made or any
certification made or deemed made by it to the Banks is untrue or
misleading in any material respect on or as of the date made or deemed
made.
(j) There shall be entered against a Fund one or
more judgments or decrees which, when taken together, will exceed 5% of
such Fund's Net Asset Value, excluding those judgments or decrees (i)
that shall have been stayed or discharged less than 30 calendar days
from the entry thereof and (ii) those judgments and decrees for and to
the extent which such Fund is insured and with respect to which the
insurer has assumed responsibility in writing or for and to the extent
which such Fund is otherwise indemnified if the terms of such
indemnification and the Person providing such indemnification are
satisfactory to the Majority Banks.
(k) A Fund shall no longer be in compliance with
all material provisions of the Act after giving effect to all notice,
cure and contest periods thereunder.
(l) A party other than Xxxxx Xxxxxxx Investment
Management Company or one of its Affiliates shall become the Adviser of
a Fund, or such Fund is in breach of the covenant set forth in SECTION
6.21.
(m) A Fund shall violate or take any action that
would result in a violation of any of its investment restrictions or
fundamental investment policies as from time to time in effect, except
for violations or the taking of such actions that could not reasonably
be expected to result in a Material Adverse Change.
(n) There occurs a Change in Control of a Fund's
Adviser.
7.2. REMEDIES. If any Event of Default described in SECTION 7.1
shall have occurred and be continuing, the Administrative Agent, upon the
direction of the Majority Lenders, shall declare the Commitments to be
terminated with respect to the applicable Fund and such Fund's obligations under
its Notes to be due and payable, whereupon such Commitments shall immediately
terminate with respect to such Fund and such Fund's Notes shall become
immediately due and payable, all without advance notice of any kind (except that
if an event described in SECTION 7.1(e) or SECTION 7.1(f) occurs, the
Commitments shall immediately terminate with respect to such Fund and the
obligations under the Notes with respect to such Fund shall become immediately
due and payable without declaration or advance notice of any kind). The
Administrative Agent shall promptly advise such Fund of any such declaration,
but failure to do so shall not impair the effect of such declaration. If an
Event of Default shall have occurred, the Administrative Agent may exercise on
behalf of itself and the Banks all rights and remedies available to it and the
Banks against such Fund under the Credit Documents or applicable law.
ARTICLE VIII
THE AGENTS
8.1. APPOINTMENT AND AUTHORIZATION. Each Bank hereby
irrevocably (subject to SECTION 8.9) appoints, designates and authorizes each
Agent to take such action on its behalf under the provisions of this Agreement
and each other Credit Document and to exercise such powers and perform such
duties as are expressly delegated to it by the terms of this Agreement or any
other Credit Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or in any other Credit Document, neither Agent shall have any
duties or responsibilities, except those expressly set forth herein, nor shall
either Agent have or be deemed to have any fiduciary relationship with any Bank,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Credit Document or
otherwise exist against either Agent.
8.2. DELEGATION OF DUTIES. Each Agent may execute any of its
duties under this Agreement or any other Credit Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Each Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
8.3. LIABILITY OF AGENTS. None of the Agent-Related Persons
shall (i) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Credit Document or the
transactions contemplated hereby (except for such Person's own gross negligence
or willful misconduct) or (ii) be responsible in any manner to any of the Banks
for any recital, statement, representation or warranty made by the Company or a
Fund or any officer or agent thereof contained in this Agreement or in any other
Credit Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by either Agent under or in
connection with, this Agreement or any other Credit Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Credit Document, or for any failure of the Company or a Fund or any
other party to any Credit Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Bank to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in or conditions of this Agreement or any other Credit
Document or to inspect the properties, books or records of the Company or a
Fund.
8.4. RELIANCE BY AGENTs. (a) Each Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement, or other document or conversation believed by it
to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including
counsel to the Funds), independent accountants and other experts selected by
such Agent. Each Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Credit Document unless it shall
first receive such advice or concurrence of the Majority Banks as it deems
appropriate, and if it so requests, it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. Each
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Credit Document in accordance with a
request or consent of the Majority Banks and such request, and any action taken
or failure to act pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the
conditions specified in SECTION 4.1, each Bank that has executed this Agreement
shall be deemed to have consented to, approved or accepted, or be satisfied with
each document or other matter either sent by either Agent to such Bank for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to, approved by, acceptable or satisfactory to the Bank.
8.5. NOTICE OF DEFAULT. Neither Agent shall be deemed to have
knowledge or notice of the occurrence of any Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid to
such Agent for the account of the Banks, unless such Agent shall have received
written notice from a Bank or a Fund referring to this Agreement, describing
such Default and stating that such notice is a "notice of default". Such Agent
will notify the Banks of its receipt of any such notice. Such Agent shall take
such action with respect to such Default as may be requested by the Majority
Banks in accordance with ARTICLE VII; PROVIDED, HOWEVER, that unless and until
such Agent has received any such request, such Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable or in the best interest of the Banks.
8.6. CREDIT DECISION. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it and that no
act by either Agent hereinafter taken, including any review of the affairs of
the Funds, shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Bank. Each Bank represents to the Agents that it
has, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition, and creditworthiness of the Funds, and
all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Funds hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Credit Documents and to
make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition, and
creditworthiness of the Funds. Except for notices, reports and other documents
expressly herein required to be furnished to the Banks by either Agent, such
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition, or creditworthiness of the Funds which
may come into the possession of any of the Agent-Related Persons.
8.7. INDEMNIFICATION OF AGENTS. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the Funds
and without limiting the obligation of the Funds to do so), pro rata, from and
against any and all Indemnified Liabilities; PROVIDED, HOWEVER, that no Bank
shall be liable for the payment to the Agent-Related Persons of any portion of
such Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct. Without limitation of the foregoing, each Bank
shall reimburse each Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by such Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Credit Document, or any
document contemplated by or referred to herein, to the extent that such Agent is
not reimbursed for such expenses by or on behalf of the Funds. The undertaking
in this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of either Agent.
8.8. AGENTS IN INDIVIDUAL CAPACITY. BofA, State Street and
their respective Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Funds and their Affiliates as though neither BofA nor State
Street were an Agent hereunder and without notice to or consent of the Banks.
The Banks acknowledge that, pursuant to such activities, BofA, State Street or
their respective Affiliates may receive information regarding the Funds or their
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Funds) and acknowledge that neither Agent shall be
under any obligation to provide such information to them. With respect to its
Loans, BofA and State Street shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though it were not an
Agent, and the terms "Bank" and "Banks" include BofA and State Street in its
individual capacities.
8.9. SUCCESSOR AGENT. Either Agent may, and at the request of
the Majority Banks shall, resign as an Agent upon 30 days' notice to the Banks,
the Company and each Fund. If an Agent resigns under this Agreement, the
Majority Banks shall appoint from among the Banks a successor agent for the
Banks, which successor agent shall be subject to approval by the Funds. If no
successor agent is appointed prior to the effective date of the resignation of
an Agent, such Agent may appoint, after consulting with the Banks and the Funds,
a successor agent from among the Banks. Upon the acceptance of its appointment
as successor agent hereunder, such successor agent shall succeed to all the
rights, powers and duties of the retiring Agent and the term "Agent" shall mean
such successor agent, and the retiring Agent's appointment, powers and duties as
Agent shall be terminated. After any retiring Agent's resignation hereunder as
Agent, the provisions of this ARTICLE VIII and SECTIONS 9.4 and 9.5 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement. If no successor agent has accepted appointment as
Agent by the date which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective, and the Banks shall perform all of the duties of the Agent
hereunder until such time, if any, as the Majority Banks appoint a successor
agent as provided for above.
8.10. WITHHOLDING TAX. If any Bank is a "foreign corporation,
partnership or trust" within the meaning of the Code and such Bank claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Bank agrees with and in favor of the Operations Agent to
deliver to the Operations Agent:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty,
properly completed IRS Forms
1001 and W-8 before the payment of any interest in the first calendar
year and before the payment of any interest in each third succeeding
calendar year during which interest may be paid under this Agreement;
(ii) if such Bank claims that interest paid under
this Agreement is exempt from United States withholding tax because it
is effectively connected with a United States trade or business of such
Bank, two properly completed and executed copies of IRS Form 4224
before the payment of any interest is due in the first taxable year of
such Bank and in each succeeding taxable year of such Bank during which
interest may be paid under this Agreement, and IRS Form W-9; and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Operations Agent of any change in
circumstances that would modify or render invalid any claimed exemption or
reduction.
(b) If any Bank claims exemption from or reduction of
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Bank sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of a Fund to such Bank, such Bank agrees to notify
the Operations Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of such Fund to such Bank. To the extent of such
percentage amount, the Operations Agent will treat such Bank's IRS Form 1001 as
no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Operations Agent sells,
assigns, grants a participation in, or otherwise transfers all or part of the
Obligations of a Fund to such Bank, such Bank agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code.
(d) If any Bank is entitled to a reduction in the
applicable withholding tax, the Operations Agent may withhold from any interest
payment to such Bank an amount equivalent to the applicable withholding tax
after taking into account such reduction. If the forms or other documentation
required by subsection (a) of this Section are not delivered to the Operations
Agent, then the Operations Agent may withhold from any interest payment to such
Bank not providing such forms or other documentation an amount equivalent to the
applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Operations Agent
did not properly withhold tax from amounts paid to or for the account of any
Bank (because the appropriate form was not delivered, was not properly executed,
or because such Bank failed to notify the Operations Agent of a change in
circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason),
such Bank shall indemnify the Operations Agent fully for all amounts paid,
directly or indirectly, by the Operations Agent as tax or otherwise, including
penalties and interest, and including any taxes imposed by any jurisdiction on
the amounts payable to the Operations Agent under this Section, together with
all costs and expenses (including Attorney Costs). The obligation of the Banks
under this subsection shall survive the payment of all Obligations and the
resignation or replacement of the Operations Agent.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Credit Document, and no consent with
respect to any departure by the Company or any Fund therefrom, shall be
effective unless the same shall be in writing and signed by the Majority Banks
(or by the Administrative Agent at the written request of the Majority Banks)
and the Funds and acknowledged by the Administrative Agent, and then any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED, HOWEVER, that no such waiver,
amendment, or consent shall, unless in writing and signed by all the Banks and
the Funds and acknowledged by the Agents, do any of the following:
(a) increase or extend the Commitments of any Bank (or
reinstate any Commitment(s) terminated pursuant to SECTION 7.1);
(b) postpone or delay any date fixed by this Agreement or
any other Credit Document for any payment of principal, interest, fees or other
amounts due to the Banks (or any of them) hereunder or under any other Credit
Document;
(c) reduce the principal of, or the rate of interest
specified herein on, any Loan, or (subject to CLAUSE (II) below) any fees or
other amounts payable hereunder or under any other Credit Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Banks
or any of them to take any action hereunder; or
(e) amend this Section, SECTION 2.12, SECTION 6.12 or any
provision herein providing for consent or other action by all Banks;
and, PROVIDED FURTHER, that (i) no amendment, waiver or consent shall, unless in
writing and signed by an Agent in addition to the Majority Banks or all the
Banks, as the case may be, affect the rights or duties of such Agent under this
Agreement or any other Credit Document and (ii) the Fee Letter may be amended,
or rights or privileges thereunder waived, in a writing executed by the parties
thereto.
9.2 NOTICES. (a) All notices, requests and other
communications shall be in writing (including, unless the context expressly
otherwise provides, by facsimile transmission, PROVIDED that any matter
transmitted by any Fund by facsimile (i) shall be immediately confirmed by a
telephone call to the recipient at the number specified on SCHEDULE III and (ii)
shall be followed promptly by delivery of a hard copy original thereof) and
mailed, faxed or delivered to the address or facsimile number specified for
notices on SCHEDULE III, or, as directed to the Funds or the Agents, to such
other address as shall be designated by such party in a written notice to the
other parties, and as directed to any other party, at such other address as
shall be designated by such party in a written notice to the Funds and the
Agents.
(b) All such notices, requests and communications shall,
when transmitted by overnight delivery or faxed, be effective when delivered for
overnight (next-day) delivery or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; PROVIDED that
notices pursuant to ARTICLE II or VIII shall not be effective until actually
received by the applicable Agent.
(c) Any agreement of the Agents and the Banks herein to
receive certain notices by telephone or facsimile is solely for the convenience
and at the request of the Funds. The Agents and the Banks shall be entitled to
rely on the authority of any Person purporting to be a Person authorized by a
Fund to give such notice, and the Agents and the Banks shall not have any
liability to such Fund or other Person on account of any action taken or not
taken by the Agents or the Banks in reliance upon such telephonic or facsimile
notice. The obligation of the Funds to repay the Loans shall not be affected in
any way or to any extent by any failure by the Agents and the Banks to receive
written confirmation of any telephonic or facsimile notice or the receipt by the
Agents and the Banks of a confirmation which is at variance with the terms
understood by the Agents and the Banks to be contained in the telephonic or
facsimile notice.
9.3. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of any Agent or any Bank, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
9.4. COSTS AND EXPENSES. Subject to the allocation provisions
of SECTION 2.13 the Funds shall:
(a) whether or not the transactions contemplated hereby
are consummated, pay or reimburse BofA and State Street (including in their
capacities as Agents) within ten (10) Business Days after demand for all
reasonable costs and expenses incurred by BofA and State Street (including in
their capacities as Agents) in connection with the development, preparation,
delivery, administration and execution of, and any amendment, supplement, waiver
or modification to (in each case, whether or not consummated), this Agreement,
any Credit Document and any other documents prepared
in connection herewith or therewith, and the consummation of the transactions
contemplated hereby and thereby, including reasonable Attorney Costs incurred by
BofA and State Street (including in their capacities as Agents) with respect
thereto; PROVIDED, HOWEVER, notwithstanding anything to the contrary in the
foregoing, the responsibility of a Fund to reimburse either BofA or State Street
for Attorney Costs in connection with the development, preparation, delivery and
execution of this Agreement and such other documents and the consummation of
such transactions shall be limited to the reasonable fees and disbursements of
outside counsel to BofA; and
(b) pay or reimburse each Agent, the Arranger and each
Bank within five Business Days after demand for all costs and expenses
(including Attorney Costs) incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or any other Credit Document during the existence of an Event of
Default or after acceleration of the Loans (including in connection with any
"workout" or restructuring regarding the Loans and including in any Insolvency
Proceeding or appellate proceeding).
9.5. FUNDS INDEMNIFICATION. (a) Whether or not the transactions
contemplated hereby are consummated, the Funds shall indemnify and hold the
Agent-Related Persons, and each Bank and each of its respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"INDEMNIFIED PERSON"), harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of any
Agent or replacement of any Bank) be imposed on, incurred by or asserted against
any such Person in any way relating to or arising out of this Agreement or any
document contemplated by or referred to herein, or the transactions contemplated
hereby, or any action taken or omitted by any such Person under or in connection
with any of the foregoing, including with respect to any investigation,
litigation or proceeding (including any Insolvency Proceeding or appellate
proceeding) related to or arising out of this Agreement or the Loans or the use
of the proceeds thereof, whether or not any Indemnified Person is a party
thereto (all the foregoing, collectively, the "INDEMNIFIED LIABILITIES");
PROVIDED that no Fund shall have an obligation hereunder to any Indemnified
Person to the extent Indemnified Liabilities result from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this Section
shall survive payment of all other Obligations.
(b) Promptly after receipt by an Indemnified Person under
subsection (a) above of notice of the commencement of any action, such
Indemnified Person shall, if a claim in respect thereof is to be made against a
Fund under such subsection, notify such Fund in writing of the commencement
thereof, but the omission so to notify such Fund shall not relieve it from any
liability which it may have to any Indemnified Person otherwise than under such
subsection. In case any such action shall be brought against any Indemnified
Person and it shall notify the relevant Fund of the commencement thereof, the
indemnifying Fund shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other Fund similarly notified, to assume
the defense
thereof, with counsel reasonably satisfactory to such Indemnified Person (who
shall not, except with the consent of the Indemnified Person, be counsel to the
indemnifying Fund(s)), and after notice from the indemnifying Fund(s) to such
Indemnified Person of its election so to assume the defense thereof; PROVIDED
that in no event shall any settlement or compromise of any such claims, actions
or demands be made without the consent of the Indemnified Person, the consent of
which shall not be unreasonably withheld.
(c) The agreements in this SECTION 9.5 shall survive
payment of all other Obligations.
9.6. PAYMENTS SET ASIDE. To the extent that a Fund makes a
payment to the Operations Agent or the Banks, or the Operations Agent or the
Banks exercise their right of set-off, and such payment or the proceeds of such
set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Operations Agent or such Bank in its discretion)
to be repaid to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such set-off had not occurred and (b) each Bank severally agrees to pay to the
Operations Agent upon demand its pro rata share of any amount so recovered from
or repaid by the Operations Agent.
9.7. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and shall inure to the benefit of each Fund,
each Agent and the Banks and their respective successors and assigns, except
that no Fund may assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of the Banks. One or more additional
Funds may become party hereto upon the written approval of all the Banks.
(b) The Loans are being made by the Banks in the ordinary
course of their business and not with a view toward distribution, it being
understood that each Bank may sell participations and assignments in its
Commitments and the Loans as provided herein. Any Bank may at any time assign,
subject to the relevant Fund's consent and the Operation Agent's consent and
subject to the payment of a $3,000 processing fee to the Operations Agent, which
consents shall not be unreasonably withheld, to one or more banks (as defined in
Section 2(a)(5) of the Act) not an affiliate (as defined in the Act) of the
Company or any Fund (each an "ASSIGNEE") all, or a proportionate part of all, of
its rights under this Agreement and such Fund's Notes. Any Bank may at any time
grant to one or more banks (as defined in Section 2(a)(5) of the Act) not an
affiliate (as defined in the Act) of the Company or any Fund or (each a
"PARTICIPANT") participating interests in its Commitments or any or all of its
Loans. In the event of any such grant by a Bank of a participating interest to a
Participant, whether or not upon notice to the relevant Fund, such Bank shall
remain responsible for the performance of its obligations hereunder, and the
relevant Fund shall continue to deal solely and directly with such Bank in
connection
with the Bank's rights and obligations under this Agreement. Any agreement
pursuant to which such Bank may grant such a participating interest shall
provide that the Bank shall retain the sole right and responsibility to enforce
the obligations of the relevant Fund hereunder, including, without limitation,
the right to approve any amendment, modification or waiver of any provision of
this Agreement; PROVIDED that such participation agreement may provide that such
Bank will not agree to any modification, amendment or waiver of this Agreement
(i) which increases or decreases the Commitments of the Bank, (ii) reduces the
principal of or rate of interest on any Loan or fees hereunder or (iii)
postpones the date fixed for any payment of principal of or interest on any Loan
or any fees hereunder without the consent of the Participant. The relevant Fund
agrees that each Participant shall, to the extent provided in its participation
agreement, be entitled to the benefits of ARTICLE III hereof with respect to its
participating interest.
(c) Any Bank may at any time assign all or any portion of
its rights under this Agreement and the Notes to a Federal Reserve Bank. No such
assignment shall release such Bank from its obligations hereunder.
(d) No Assignee, Participant or other transferee of a
Bank's rights shall be entitled to receive any greater payment under SECTION 3.1
hereof than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Company's or any
Fund's prior written consent or at a time when the circumstances giving rise to
such greater payment did not exist.
9.8 CONFIDENTIALITY. Each Bank agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all written information identified as
"confidential" or "secret" by a Fund and provided to it by or on behalf of the
Fund, or by an Agent on such Fund's behalf, under this Agreement or any other
Credit Document, and neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this Agreement
and the other Credit Documents, except to the extent such information (i) was or
becomes generally available to the public other than as a result of disclosure
by the Bank or (ii) was or becomes available on a non-confidential basis from a
source other than the Fund, provided that such source is not bound by a
confidentiality agreement with the Fund known to the Bank; PROVIDED, HOWEVER,
that any Bank may disclose such information (A) at the request or pursuant to
any requirement of any Governmental Authority to which the Bank is subject or in
connection with an examination of such Bank by any such authority; (B) pursuant
to subpoena or other court process; (C) when required to do so in accordance
with the provisions of any applicable Requirement of Law; (D) to the extent
reasonably required in connection with any litigation or proceeding to which any
Agent, any Bank or their respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under any other Credit Document; (F) to such Bank's independent auditors and
other professional advisors; (G) to any Participant or Assignee, actual or
potential, PROVIDED that such Person agrees in writing to keep such information
confidential to the same extent as required by the Banks hereunder; (H) as to
any Bank or its Affiliate, as
expressly permitted under the terms of any other document or agreement regarding
confidentiality to which such Fund is party or is deemed party with such Bank or
such Affiliate; and (I) to its Affiliates.
9.9. SET-OFF. In addition to any rights and remedies of the
Banks provided by law, if, as to a Fund, an Event of Default exists and is
continuing or the Loans have been accelerated, each Bank is authorized at any
time and from time to time, without prior notice to the relevant Fund (any such
notice being waived by such Fund to the fullest extent permitted by law), to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any time
owing by, such Bank to or for the credit or the account of the Fund against any
and all Obligations owing to such Bank, now or hereafter existing, irrespective
of whether or not either Agent or such Bank shall have made demand under this
Agreement or any Credit Document and although such Obligations may be contingent
or unmatured provided that any such appropriation and application shall be
subject to the provisions of SECTION 2.12. Each Bank agrees promptly to notify
the affected Fund and the Agents after any such set-off and application made by
such Bank; PROVIDED, HOWEVER, that the failure to give such notice shall not
affect the validity of such set-off and application.
9.10. NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC. Each Bank
shall notify the Agents in writing of any changes in the address to which
notices to the Bank should be directed, of addresses of any Lending Office, of
payment instructions in respect of all payments to be made to it hereunder and
of such other administrative information as either Agent shall reasonably
request.
9.11. COUNTERPARTS. This Agreement may be executed in any number
of separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
9.12. SURVIVAL. The obligations of the Funds under SECTIONS 2.8,
9.4 and 9.5, and the obligations of the Banks under SECTIONS 8.7 AND 9.8, shall
in each case survive any termination of this Agreement, the payment in full of
all Obligations and the termination of all Commitments. The representations and
warranties made by the Company and the Funds in this Agreement and in each other
Credit Document shall survive the execution and delivery of this Agreement and
each such other Credit Document.
9.13. DISCLAIMER. None of the shareholders, trustees, officers,
employees and other agents of the Company or any Fund shall be personally bound
by or liable for any indebtedness, liability or obligation hereunder or under
the Notes, nor shall resort be had to their private property for the
satisfaction of any obligation or claim hereunder. Nothing in this SECTION 9.13
shall affect the Bank's rights against Company Persons as provided in SECTION
1.5.
9.14. SEVERABILITY. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
9.15. NO THIRD PARTIES BENEFITED. This Agreement is made and
entered into for the sole protection and legal benefit of the Company and the
Funds, the Banks, the Agents and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Credit Documents.
9.16. GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF ILLINOIS; PROVIDED THAT THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY AND EACH OF THE AGENTS
AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE COMPANY AND EACH OF THE AGENTS
AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
COMPANY, THE AGENTS AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
ILLINOIS LAW.
9.17. WAIVER OF JURY TRIAL. THE COMPANY, THE BANKS AND THE AGENTS EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE COMPANY, THE
BANKS AND THE AGENTS EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE
RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER CREDIT
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
AND THE OTHER CREDIT DOCUMENTS.
9.18. ENTIRE AGREEMENT. This Agreement, together with the other
Credit Documents, embodies the entire agreement and understanding among the
Company, the Banks and the Agents and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXXX XXXXXXX INVESTMENT COMPANY, as
agent for the Funds listed in Schedule IV
By /s/ Xxxx Xxxxxxx
-----------------------------------
Title Treasurer & Chief Accounting
--------------------------------
OFFICER
Address: 000 X Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000)000-0000
Attention: General Counsel
with a copy to:
Address: Xxxxxxxx Ronon Xxxxxxx & Xxxxx, L.L.P.
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Facsimile No.: (000)000-0000
Attention: Xxxxx Xxxxxx
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Administrative Agent and
as a Bank
By /s/ Xxxx X. Xxxxx
------------------------------
Title Principal
---------------------------
STATE STREET BANK AND TRUST COMPANY,
as Operations Agent and as a Bank
By /s/ Xxxx X. Xxxxx
------------------------------
Title Vice President
---------------------------
SCHEDULE I
DEFINITIONS
"ACT" means the Investment Company Act of 1940.
"ADMINISTRATIVE AGENT" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Administrative
Agent pursuant to Section 8.9.
"ADVISOR" means Xxxxx Xxxxxxx Investment Management Company.
"AFFILIATE" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract,
or otherwise.
"AGENT" means the Administrative Agent or the Operations Agent.
"AGENT-RELATED PERSONS" means BofA, State Street and any successor agent
arising under SECTION 8.9, together with their respective Affiliates (including,
in the case of BofA, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.
"AGREEMENT" means this Credit Agreement.
"ALLOCATION NOTICE" means a notice, substantially in the form of EXHIBIT
2.13, furnished to the Agent by or on behalf of each Fund setting forth, as of
the date of such notice, the manner of allocation of liability for amounts that
shall become jointly due and payable by the Funds under the Credit Documents
which specifically excludes (without limitation) principal and interest with
respect to Loans. The allocation of liability among the Funds as set forth in an
Allocation Notice shall be effective from the date of receipt thereof by the
Agent until a later dated Allocation Notice is delivered to the Agent.
"APPLICABLE MARGIN" means 0.50%.
"ARRANGER" means Banc of America Securities L.L.C. as lead arranger and
sole book manager.
"ASSET COVERAGE RATIO" means, with respect to any Fund, an amount equal
to the Total Assets of such Fund less (a) all Indebtedness not represented by
Senior Securities
and (b) the value of assets subject to Liens, divided by the aggregate amount of
all Senior Securities representing Indebtedness of such Fund. For the purpose of
calculating the Asset Coverage Ratio, the amount of any Indebtedness deducted
from Total Assets shall be equal to the greater of (x) the outstanding amount of
such Indebtedness and (y) the fair market value of all assets securing such
Indebtedness.
"ASSIGNEE" is defined in SECTION 9.7(b).
"ATTORNEY COSTS" means and includes any and all fees and disbursements of
any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"AUTHORIZED OFFICER" means, relative to any Fund, those of its officers
or agents whose signatures and incumbency shall have been certified to the
Agents and the Banks pursuant to SECTION 4.1(a).
"BANKS" is defined in the PREAMBLE.
"BANKRUPTCY CODE" means the Bankruptcy Reform Act of 1978.
"BASE RATE" means a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% and, (b) the rate of interest in effect
for such day as publicly announced from time to time by State Street as its
"prime rate." Such rate is a rate set by State Street based upon various factors
including State Street's costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change in the
prime rate announced by State Street shall take effect at the opening of
business on the day specified in the public announcement of such change.
"BofA" is defined in the PREAMBLE.
"BORROWING" means a borrowing hereunder consisting of Committed Loans of
the same Type made to a Fund on the same day by the Banks under ARTICLE II and,
other than in the case of Federal Funds Rate Loans, having the same Interest
Period.
"BORROWING BASE" has the meaning set forth in SECTION 6.1(c).
"BORROWING BASE CERTIFICATE" means a Borrowing Base Certificate as
defined in SECTION 6.1(c) and substantially in the form of EXHIBIT 6.1 attached
hereto.
"BORROWING DATE" means any date on which a Borrowing or a Swing Loan
occurs under SECTION 2.3 or SECTION 2.14.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in Boston are authorized or required by law to close.
"CAPITAL ADEQUACY REGULATION" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"CHANGE IN CONTROL" means Northwestern Mutual Life Insurance Company
shall fail to own directly or indirectly at least 51% of the voting stock of the
Adviser.
"CLOSING DATE" means the date on which all conditions precedent set forth
in SECTION 4.1 are satisfied or waived by all the Banks (or, in the case of
SECTION 4.1(c), waived by the Person entitled to receive such payment).
"CODE" means the Internal Revenue Code of 1986.
"COMMITTED LOAN" means an extension of credit by the Banks pursuant to
SECTION 2.1.
"COMMITMENT" means, relative to any Bank, such Bank's obligation to make
Committed Loans pursuant to SECTION 2.1.
"COMMITMENT AMOUNT" means, on any date, $75,000,000, as such amount may
be reduced from time to time pursuant to SECTION 2.4.
"COMMITMENT TERMINATION DATE" means with respect to any Fund the earliest
to occur of:
a) the Scheduled Commitment Termination Date;
a) the date on which the Commitments terminate in accordance with the
provisions of this Agreement; and
a) the date on which any Event of Default with respect to that Fund
described in SECTION 7.1(e) or SECTION 7.1(f) occurs.
Upon the occurrence of any event described in CLAUSE (b) or (c) above,
the Commitments shall terminate automatically and without further action.
"COMPANY" is defined in the preamble.
"COMPANY PERSONS" is defined in SECTION 1.5.
"CONTINGENT OBLIGATION" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any
security therefor, (ii) to advance or provide funds for the payment or discharge
of any such primary obligation, or to maintain working capital or equity capital
of the primary obligor, or otherwise to maintain the net worth or solvency or
any balance sheet item, level of income or financial condition of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation, or (iv)
otherwise to assure or hold harmless the holder of any such primary obligation
against loss in respect thereof (each, a "GUARANTY OBLIGATION"); (b) with
respect to any Surety Instrument issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement of drawings or payments;
(c) to purchase any materials, supplies or other property from, or to obtain the
services of, another Person if the relevant contract or other related document
or obligation requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of whether delivery of
such materials, supplies or other property is ever made or tendered, or such
services are ever performed or tendered; or (d) in respect of any Swap Contract.
The amount of any Contingent Obligation shall, in the case of Guaranty
Obligations, be deemed equal to the stated or determinable amount of the primary
obligation in respect of which such Guaranty Obligation is made or, if not
stated or if indeterminable, the maximum reasonably anticipated liability in
respect thereof, and in the case of other Contingent Obligations, shall be equal
to the maximum reasonably anticipated liability in respect thereof.
"CREDIT DOCUMENTS" means this Agreement, any Notes, the Fee Letter and
all other documents delivered to any Agent or any Bank in connection herewith.
"DEFAULT" means any Event of Default or any condition, occurrence or
event which, with notice or lapse of time or both, would, unless cured or
waived, constitute an Event of Default.
"DOLLAR" and the symbol "$" mean the lawful money of the United States.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"EVENT OF DEFAULT" means any of the events described in SECTION 7.1.
"FEDERAL FUNDS RATE" means, at the relevant time of reference thereto,
the rate that appears on the Bloomberg Page BTMM, as quoted by Xxxxxx Xxx
Xxxxxx, as of 9:30 a.m. (New York time), as the "Federal Funds Ask Rate", or, if
unavailable, by any other federal funds broker of recognized standing as
determined by the Operations Agent.
"FEE LETTER" means the letter agreement referred to in SECTION 2.8.
"FISCAL QUARTER" means any quarter of a Fiscal Year.
"FISCAL YEAR" means any period of twelve consecutive calendar months
ending on the last day of such twelve-month period; references to a Fiscal Year
with a number
corresponding to any calendar year (E.G., the "1999 Fiscal Year") refer to the
Fiscal Year ending on or before December 31 during such calendar year.
"FRB" means the Board of Governors of the Federal Reserve System and any
Governmental Authority succeeding to any of its principal functions.
"FUND" means each series or class of shares of the Company which
constitutes a "series" under the Act, which is a signatory to this Agreement or
which becomes a signatory to this Agreement following the approval of all the
Banks.
"GAAP" means United States generally accepted accounting principles.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"GUARANTY OBLIGATION" has the meaning specified in the definition of
"Contingent Obligation."
"INDEBTEDNESS" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business on ordinary terms); (c)
all non-contingent reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including, without limitation, obligations so evidenced
incurred in connection with the acquisition of property, assets or businesses;
(e) all indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case with respect
to property acquired by the Person (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations as lessee under
leases that have been or should be, in accordance with GAAP, recorded as capital
leases; (g) all net obligations with respect to Swap Contracts; (h) all
indebtedness referred to in CLAUSES (a) through (g) above secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including accounts
and contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; (i) all Guaranty
Obligations in respect of indebtedness or obligations of others of the kinds
referred to in CLAUSES (a) through (g) above; (j) all Contingent Obligations;
and (k) all other items which, in accordance with GAAP, would be included as
liabilities on the liability side of the balance sheet of such Person as of the
date at which Indebtedness is to be determined.
"INDEMNIFIED LIABILITIES" is defined in SECTION 9.5.
"INDEMNIFIED PERSONS" is defined in SECTION 9.5.
"INSOLVENCY PROCEEDING" means, with respect to any Person, (a) any case,
action or proceeding before any court or other Governmental Authority relating
to bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors or (b) any general assignment for
the benefit of creditors, composition, marshalling of assets for creditors, or
other similar arrangement in respect of its creditors generally or any
substantial portion of its creditors, undertaken under U.S. Federal, state or
foreign law, including the Bankruptcy Code.
"IRS" means the Internal Revenue Service and any Governmental Authority
succeeding to any of its principal functions under the Code.
"LENDING OFFICE" means, as to any Bank, the office or offices of such
Bank specified as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office", as the case may be, on such Bank's signature page hereto or in
the case of an Assignee Bank, in the Bank Assignment Agreement or such other
office or offices as such Bank may from time to time notify to the Company and
the Agent.
"LIEN" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, segregated asset
arrangement established in connection with reverse repurchase transactions,
encumbrance, lien (statutory or other), or preferential arrangement of any kind
or nature whatsoever in respect of any property (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease, any financing lease
having substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the asset to which such
lien relates as debtor, under the Uniform Commercial Code or any comparable law)
and any contingent or other agreement to provide any of the foregoing, but not
including the interest of a lessor under an operating lease.
"LOAN" means either a Committed Loan or a Swing Loan.
"LOAN REQUEST" means a request for a Loan given by a Fund to the Agent,
substantially in the form of EXHIBIT 2.3.
"MAJORITY BANKS" means, at any time, at least two Banks then holding in
excess of 50% of the then aggregate unpaid principal amount of the Committed
Loans or, if no such principal amount is then outstanding, at least two Banks
then having at least in excess of 50% of the Commitments.
"MATERIAL ADVERSE CHANGE" means any change that is material and adverse
to (x) the condition (financial or otherwise), business or prospects of a Fund
or (y) the ability of a Fund to duly and punctually pay and perform all or any
of its Obligations.
"NET ASSET VALUE" means, at any date, Total Assets less Total
Liabilities.
"NON-UNITED STATES PERSON" means any corporation, partnership,
association or trust that is organized under the laws of a jurisdiction other
than the United States of America or one of its states.
"NOTE" means the promissory note of a Fund, substantially in the form set
forth as EXHIBIT 2.2.
"OBLIGATIONS" means all obligations (monetary or otherwise) of a Fund to
the Banks and the Agents under the Credit Documents and the Fee Letter,
including (a) all obligations to make payments to the Banks of, and in respect
of the principal amount of and interest on, any Loan and (b) all obligations of
a Fund to the Banks and the Agents in respect of fees, costs, expenses and
indemnification under SECTIONS 9.4 and 9.5.
"OPERATIONS AGENT" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Operations
Agent pursuant to Section 8.9.
"OPERATIONS AGENT'S PAYMENT OFFICE" means the address for payments set
forth on the signature page hereto in relation to the Operations Agent or such
other address as the Operations Agent may from time to time specify.
"ORGANIZATION DOCUMENTS" means, for the Company, its declaration of
trust, bylaws, and all applicable resolutions of its board of trustees (or any
committee thereof).
"OTHER TAXES" means any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies that arise from
any payment made hereunder or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement or any other Credit Documents.
"PARTICIPANT" is defined in SECTION 9.7(b).
"PERSON" means any natural person, corporation, limited liability
company, partnership, firm, association, trust, government, governmental agency
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"PLAN" means any "pension plan" or "welfare benefit plan" as such terms
are defined in ERISA.
"PRO RATA SHARE" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of such Bank's Commitment divided by the combined Commitments of all Banks,
as set forth on SCHEDULE II, as such amount may be adjusted from time to time as
a result of an assignment made by such Bank pursuant to SECTION 9.7 or
otherwise.
"REGULATION U" means the FRB's Regulation U.
"RELATED PARTY" means, with respect to a Fund and for purposes of SECTION
6.16 only, any Person (i) which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with,
such Fund, (ii) which beneficially owns or holds 5% or more of the equity
interest of such Fund or (iii) 5% or more of the equity interest of which is
beneficially owned or held by such Fund. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"REPAYMENT NOTICE" means a notice of repayment of a Loan given by a Fund
to the Agent, substantially in the form of EXHIBIT 2.3.
"REPLACEMENT BANK" is defined in SECTION 3.4.
"REQUIREMENT OF LAW" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"SCHEDULED COMMITMENT TERMINATION DATE" means December 28, 2000; PROVIDED
that the Scheduled Commitment Termination Date may be extended for successive
364-day periods upon the written request of the Company therefor received by the
Administrative Agent and the Banks not less than 45 days prior to the
then-existing Scheduled Commitment Termination Date, and the receipt by the
Company of the agreement by the Administrative Agent and the Banks (which shall
be entirely at the sole discretion of the Administrative Agent and each Bank,
none of whom has any obligation regarding such extension) to such requested
extension. No agreement regarding any particular extension shall create any
obligation of the Administrative Agent or any Bank regarding any subsequent
extension.
"SENIOR SECURITY" means any bond, debenture, note or similar obligation
or instrument constituting a security and evidencing Indebtedness (including,
without limitation, all Loans under this Agreement).
"STATE STREET" is defined in the preamble.
"SUBSIDIARY" means, with respect to any Person, any other Person of which
more than 50% of the outstanding equity having ordinary voting power to elect a
majority of the board of directors (or similar board) of such other Person
(irrespective of whether at the time equity of any other class or classes of
such Person shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person.
"SURETY INSTRUMENTS" means all letters of credit (including standby and
commercial), banker's acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"SWAP CONTRACT" means any agreement (including any master agreement and
any agreement, whether or not in writing, relating to any single transaction)
that is an interest rate swap agreement, basis swap, forward rate agreement,
commodity swap, commodity option, equity or equity index swap or option, bond
option, interest rate option, forward foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency rate swap
agreement, swaption, currency option or any other similar agreement (including
any option to enter into any of the foregoing).
"SWING LENDER" means State Street.
"SWING LOAN" is defined in SECTION 2.14.
"SWING LOAN FACILITY" is defined in SECTION 2.14.
"SWING LOAN FACILITY AMOUNT" means $10,000,000.
"TAXES" means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and each Agent, such taxes (including income
taxes or franchise taxes) as are imposed on or measured by each Bank's net
income by the jurisdiction (or any political subdivision thereof) under the laws
of which such Bank or Agent, as the case may be, is organized or maintains a
lending office.
"TOTAL ASSETS" means, with respect to a Fund as of any date, the
aggregate amount of all items that would be set forth as assets on a balance
sheet of such Fund on such date prepared in accordance with GAAP. The assets of
a Fund shall be valued in accordance with the Act, the rules and regulations
under the Act, and the valuation procedures set forth in its most recent
statement of additional information. Upon the written request of the Agent, a
Fund shall promptly furnish all such information as the Agent shall reasonably
request relating to the value of any portfolio security or other asset of such
Fund or the assignment of values thereto by such Fund or any other Person.
"TOTAL LIABILITIES" means, with respect to a Fund as of any date, the
aggregate amount of all items that would be set forth as liabilities on a
balance sheet of such Fund on such date prepared in accordance with GAAP.
"TYPE" has the meaning specified in the definition of "Loan."
"UNITED STATES" or "U.S." means the United States of America, its 50
States and the District of Columbia.
SCHEDULE II
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
---- ---------- --------
Bank of America, National $40,000,000 53.3333334%
Association
State Street Bank and $35,000,000 46.6666666%
Trust Company
TOTAL $75,000,000 100%
SCHEDULE III
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
BANK OF AMERICA, N.A.
as Administrative Agent
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N. A.
LENDING OFFICE: 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
NOTICES (OTHER THAN LOAN REQUESTS AND NOTICES OF CONVERSION/CONTINUATION):
Attention: Xxxx Xxxxxx / Xxxx Xxxxxx
Telephone: (000) 000-0000 / (000) 000-0000
Facsimile: (000) 000-0000 / (000) 000-0000
STATE STREET BANK AND TRUST COMPANY, AS OPERATIONS AGENT
0 Xxx xx Xxxxxxxxx
0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx XxxXxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
STATE STREET BANK AND TRUST COMPANY
LENDING OFFICE: 000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
NOTICES (OTHER THAN LOAN REQUESTS AND NOTICES OF CONVERSION/CONTINUATION):
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
Schedule IV
XXXXX XXXXXXX INVESTMENT COMPANY
FUND
Equity I Fund
Equity II Fund
Equity III Fund
Equity Q Fund
Fixed Income I Fund
Short Term Bond Fund
Fixed Income III Fund
International Fund
Emerging Markets Fund
Diversified Equity Fund
Special Growth Fund
Equity Income Fund
Quantitative Equity Fund
International Securities Fund
Real Estate Securities Fund
Diversified Bond Fund
Multistrategy Bond Fund
Money Market Fund
Tax Exempt Bond Fund
U.S. Government Money Market Fund
Tax Free Money Market Fund
Aggressive Strategy Fund
Balanced Strategy Fund
Moderate Strategy Fund
Conservative Strategy Fund
Equity Aggressive Strategy Fund
Tax-Managed Global Equity Fund
Tax-Managed Aggressive Strategy Fund
Tax-Managed Moderate Strategy Fund
Tax-Managed Conservative Strategy Fund
Tax-Managed Large Cap Fund
Tax-Managed Small Cap Fund
EXHIBIT 2.2
Non-Negotiable
PROMISSORY NOTE
$__,000,000.00 _________, ________: as of ________ __, 199_
FOR VALUE RECEIVED, the undersigned Fund ("Fund"), promises to pay to
_____________________ (the "Bank"), as set forth in the Credit Agreement
hereinafter referred to and on the Commitment Termination Date (as defined in
the Credit Agreement) the principal sum of ____________________ AND 00/100
DOLLARS ($__,000,000.00) or, if less, the then aggregate unpaid principal amount
of Loans (as defined in the Credit Agreement) as has been borrowed by the Fund
under the Credit Agreement. The Fund may borrow, repay and reborrow hereunder in
accordance with the provisions of the Credit Agreement. All Loans and all
payments of principal shall be recorded by the holder in its records.
Anything in this Note to the contrary notwithstanding, the Fund shall be
liable hereunder only for Loans borrowed by the Fund under the Credit Agreement
and other obligations with respect thereto. The sole source of repayment of the
principal of and interest on each Loan hereunder and other obligations with
respect thereto made with respect to the Fund shall be the revenues and assets
of such Fund and not from any other asset of the Company or any other Fund as a
series of the Company.
The Fund further promises to pay to the order of the Bank interest on the
aggregate unpaid principal amount hereof from time to time outstanding from the
date hereof until paid in full at the rates per annum which shall be determined
in accordance with the provisions of the Credit Agreement. Accrued interest
shall be payable on the dates specified in the Credit Agreement.
All payments of principal and interest under this Note shall be made in
lawful money of the United States of America in immediately available funds.
This Note is the Note referred to in, and evidences indebtedness incurred
under, a Credit Agreement dated as of __________, 1999 (herein, as it may be
amended, modified or supplemented from time to time, called the "Credit
Agreement") among the Fund, certain banks, Bank of America, National
Association, as Administrative Agent, and State Street Bank and Trust Company,
as Operations Agent, to which Credit Agreement reference is made for a statement
of the terms and provisions thereof, including those under which the Fund is
permitted and required to make prepayments and repayments of principal of such
indebtedness and under which such indebtedness may be declared to be immediately
due and payable.
All parties hereto, whether as makers, endorsers or otherwise, severally
waive presentment, demand, protest and notice of dishonor in connection with
this Note.
This Note is made under and governed by the internal laws of the State of
Illinois.
XXXXX XXXXXXX INVESTMENT
COMPANY, as agent for
[NAME OF FUND]
By:
---------------------
Title:
------------------
LOANS AND PRINCIPAL PAYMENTS
-----------------------------------------------------------
Amount of Unpaid
Amount of Principal Principal Notation
Date Loan Made Repaid Total Total Made by
---- --------- ------ --------- --------- ---------
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EXHIBIT 2.3
FORM OF LOAN REQUEST/REPAYMENT
Reference is made to that certain Credit Agreement, dated as of , 1999
(the "Credit Agreement"), among the borrowers party thereto, various banks party
thereto, Bank of America, National Association as Administrative Agent and State
Street Bank and Trust Company, as Operations Agent. Capitalized terms used
herein and not otherwise defined shall have the meanings given to such terms in
the Credit Agreement. Pursuant to the terms of the Credit Agreement, the
undersigned, on behalf of and with respect to the [NAME OF FUND], hereby
requests:
(1) Committed Loans / Swing Loan [CIRCLE ONE]
(2) Borrowing / Repayment [CIRCLE ONE]
under the Credit Agreement at follows:
(3) The Business Day of the proposed borrowing / repayment [CIRCLE
ONE] is ____________________.
(4) This Fund's outstanding principal as of the preceding Business
Day is: $____________________.
(5) The amount of borrowing/repayment being requested by this
notice is: $____________________.
(increments of $1,000,000.00 above the minimum of $1,000,000.00)
(6) The new amount of principal outstanding subsequent to this request
will be: $____________________.
The undersigned, on behalf of and with respect to [NAME OF FUND],
represents and warrants as follows:
1. The purpose for which such Loans will be used is
----------------------------------------------------------------.
2. As of ____________________*, (i) the Asset Coverage Ratio of such Fund
was as set forth in SUBPARAGRAPH (e) below and (ii) the Borrowing Base of such
Fund was as set forth in SUBPARAGRAPH (f) below, calculated as follows:
____________________
Use immediately preceding Business Day.
(a) Net Asset Value plus proposed
Loan ------------------
(b) MINUS (without duplication)
value of Assets subject
to Liens (including, without
limitation, margin and asset
allocation arrangements) ------------------
(c) Indebtedness not represented
by Senior Securities ------------------
(d) Adjusted Net Asset Value
((a) minus (b) minus (c)) ------------------
(e) Senior Securities Representing
Indebtedness ------------------
(f) Asset Coverage Ratio ((d) divided
by (e)) ------------------
(g) Borrowing Base ((d) times 10%) ------------------
3. The undersigned further certifies, on behalf of the Fund, that (a) the
proceeds of such Loan will be utilized solely by the Fund designated above, (b)
to the best of its knowledge, no Default has occurred and is continuing as of
the date of this Borrowing Certificate and (c) the Asset Coverage Ratio of the
Fund as set forth in its prospectus is not more restrictive than 10 to 1.
4. The undersigned further certifies, on behalf of the Fund, that, with
respect to the Fund, there has not been outstanding as of the close of business
(Boston time) on the day preceding the proposed Borrowing Date for the requested
Loan any Loan that had been outstanding for at least thirty days.
Date: Xxxxx Xxxxxxx Investment Company, on
---------------- behalf of
[NAME OF FUND]
By:
------------------------
Title:
EXHIBIT 2.14
FORM OF ALLOCATION NOTICE
Date:_________ , _____
To: State Street Bank and Trust Company, as Operations Agent for the Banks
party to the Credit Agreement dated as of _______, 1999 (the "CREDIT
AGREEMENT") among the investment companies party thereto, certain banks
thereto, Bank of America, National Association, as Administrative Agent
and State Street Bank and Trust Company, as Operations Agent
Ladies and Gentlemen:
Reference is made to the Credit Agreement (the terms defined therein
being used herein as therein defined). This instrument is an Allocation Notice
as contemplated by the Credit Agreement.
The allocation of liability of the Funds as set forth herein shall be
effective from the date hereof until a later dated Allocation Notice is
delivered to the Operations Agent.
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Name of Fund % Allocation
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100%
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XXXXX XXXXXXX INVESTMENT COMPANY
ON BEHALF OF [LIST FUNDS]
By
---------------------------
Title
------------------------
_______, 1999
EXHIBIT 4.1(c)-1
FORM OF OPINION OF COUNSEL TO THE FUNDS
[TO BE TYPED ON COUNSEL'S LETTERHEAD]
__________, 1999
To Bank of America, National Association,
as Administrative Agent, State Street
Bank and Trust Company, as Operations Agent
and the Banks listed on Schedule I to the Credit Agreement
Ladies and Gentlemen:
This opinion is being furnished to you pursuant to Section 4.1(c) of the Credit
Agreement dated as of _________, 1999 (as amended or modified and in effect from
time to time, the "Credit Agreement") among Xxxxx Xxxxxxx Investment Company
(the "Company"), on behalf of certain Funds listed therein (the "Funds"),
various banks party thereto, Bank of America, National Association, as
Administrative Agent and State Street Bank and Trust Company, as Operations
Agent. Terms defined in the Credit Agreement and not otherwise defined herein
are used herein with the meanings so defined.
We have acted as counsel to the Company and the Funds in connection with the
preparation of the Credit Agreement and as such are familiar with the
proceedings taken by them in connection therewith. In that regard, we have
examined such certificates, documents and records, and have made such
examination of laws, as we have deemed necessary to enable us to render the
opinions expressed below. In addition, we have examined and relied as to matters
of fact upon representations and warranties contained in the Credit Agreement
and in certificates, copies of which have been furnished to you, and upon the
covenants contained in the Credit Agreement as to the application of the
proceeds of the Loans made pursuant thereto.
[ASSUMPTIONS]
Based on the foregoing, we are of the opinion that:
1. The Company is a legally organized and validly existing business trust
under the laws of _____________.
2. Each Fund has powers adequate for the execution, delivery and
performance of the Credit Agreement and the Notes and for the carrying on of the
business now conducted by it.
3. The Credit Agreement has been duly authorized, executed and delivered
by the Company as agent for the Funds and is a legal, valid and binding
obligation of each such Fund, enforceable in accordance with its terms.
[4. THE NOTES HAVE BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY THE
COMPANY ON BEHALF OF THE RELEVANT FUND AND ARE LEGAL, VALID AND BINDING
OBLIGATIONS OF EACH SUCH FUND, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.]
5. The execution and delivery of Credit Agreement [AND THE NOTES
DESCRIBED IN PARAGRAPH 4] hereof do not, and the performance by each of the
relevant Funds of the terms thereof applicable to such Funds will not, result in
any violation of, be in conflict with, constitute a default under, or, result in
the creation of a lien under, any term or provision of: (i) the articles of
incorporation or by-laws of the Company, (ii) any material provision in any
material indenture, mortgage, agreement, or contract to which the Company on
behalf of the relevant Fund is a party or by which any of such Fund's properties
may be bound, (iii) any law, statute or governmental regulation, including
without limitation, the 1940 Act, or (iv) to our knowledge, any writ, order, or
decision binding on the Company or the Company on behalf of the relevant Fund,
as the case may be.
6. No consent or approval of any governmental authority is required to be
obtained by the Company or any Fund in connection with the execution, delivery
or performance of the Credit Agreement [OR THE NOTES], nor for borrowings
thereunder in accordance with the limits set forth in the Fund's Registration
Statement.
7. The Company is a registered, open-end management investment company
under the 0000 Xxx. The shares of beneficial interest of each Fund are
registered for sale under the 1933 Act.
[QUALIFICATIONS]
The foregoing opinion is solely for your benefit and may not be relied on by any
person other than you.
Very truly yours,
EXHIBIT 6.1
FORM OF BORROWING BASE CERTIFICATE
Reference is made to that certain Credit Agreement, dated as of __________,
1999 (the "Credit Agreement"), among certain investment companies party thereto,
various banks party thereto, Bank of America, National Association, as
Administrative Agent and State Street Bank and Trust Company, as Operations
Agent. Capitalized terms used herein and not otherwise defined shall have the
meanings given to such terms in the Credit Agreement.
Pursuant to the terms of the Credit Agreement, the undersigned, on behalf
of and with respect to the [NAME OF FUND] (the "Fund"), hereby represents and
certifies to the Agent and the Banks that as of __________ __, _____, (i) the
Borrowing Base of the Fund was the amount shown in SUBPARAGRAPH (e) below and
(ii) the Asset Coverage Ratio was the ratio set forth in SUBPARAGRAPH (f) below,
each calculated as follows:
(a) Net Asset Value -------------------
(b) MINUS (without duplication)
value of Assets subject
to Liens (including, without
limitation, margin and asset
allocation arrangements) -------------------
(c) Indebtedness Not Represented
by Senior Securities -------------------
(d) Adjusted Net Asset Value
((a) minus (b) minus (c)) -------------------
(e) Borrowing Base ((d) times 10%) -------------------
(f) Senior Securities Representing
Indebtedness -------------------
(g) Asset Coverage Ratio ((d) divided
by (f)) -------------------
The Asset Coverage Ratio of the Fund as set forth in its prospectus is not
more restrictive than 10 to 1.
Date: __________, on behalf of
------------------- [NAME OF FUND]
By:
--------------------------------
Title: [MUST BE AN AUTHORIZED OFFICER]
