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AMERICAN CENTURY FUNDS
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF DECEMBER 17, 2003
JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT
THE SEVERAL BANKS FROM
TIME TO TIME PARTY HERETO
X. X. XXXXXX SECURITIES INC.,
AS ADVISOR, LEAD ARRANGER AND BOOKRUNNER
BANK OF AMERICA, N.A.
AS SYNDICATION AGENT
CREDIT LYONNAIS, NEW YORK BRANCH
ROYAL BANK OF SCOTLAND PLC
NATIONAL AUSTRALIA BANK LIMITED
AS DOCUMENTATION AGENTS
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TABLE OF CONTENTS
PAGE
SECTION 1. Definitions and Accounting Matters...........................1
Section 1.1 CERTAIN DEFINED TERMS.................................1
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Section 1.2 ACCOUNTING TERMS AND DETERMINATIONS...................7
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SECTION 2. Commitments, Loans, Notes and Prepayments....................7
Section 2.1 LOANS.................................................8
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Section 2.2 PROCEDURE FOR BORROWINGS..............................8
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Section 2.3 CHANGES OF COMMITMENTS................................8
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Section 2.4 COMMITMENT FEE........................................8
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Section 2.5 LENDING OFFICES.......................................9
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Section 2.6 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT.............9
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Section 2.7 NOTES.................................................9
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Section 2.8 OPTIONAL PREPAYMENTS..................................9
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Section 2.9 MANDATORY PREPAYMENTS.................................9
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Section 2.10 EXTENSION OF COMMITMENT TERMINATION DATE.............10
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Section 2.11 DESIGNATION OF ADDITIONAL BORROWER
AMENDMENTS TO SCHEDULE I............................11
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Section 2.12 SWING LINE COMMITMENT................................12
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Section 2.13 PROCEDURE FOR SWING LINE BORROWING...................12
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Section 2.14 REFUNDING OF SWING LINE LOANS........................12
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SECTION 3. Payments of Principal and Interest..........................15
Section 3.1 REPAYMENT OF LOANS....................................15
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Section 3.2 INTEREST..............................................15
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SECTION 4. Payments; Pro Rata Treatment; Computations; Etc.............16
Section 4.1 PAYMENTS..............................................16
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Section 4.2 PRO RATA TREATMENT....................................16
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Section 4.3 COMPUTATIONS..........................................17
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Section 4.4 MINIMUM AMOUNTS.......................................17
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Section 4.5 CERTAIN NOTICES.......................................17
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Section 4.6 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE
AGENT.................................................18
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Section 4.7 SHARING OF PAYMENTS, ETC..............................18
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Section 4.8 REQUIREMENTS OF LAW...................................19
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SECTION 5. U.S. Taxes..................................................20
SECTION 6. Conditions Precedent........................................22
Section 6.1 INITIAL LOAN..........................................22
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Section 6.2 INITIAL AND SUBSEQUENT LOANS..........................23
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SECTION 7. Representations and Warranties..............................24
Section 7.1 CORPORATE EXISTENCE; COMPLIANCE WITH LAW..............24
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Section 7.2 INVESTMENT COMPANY....................................24
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Section 7.3 PERMISSION TO BORROW..................................25
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Section 7.4 FINANCIAL CONDITION...................................25
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Section 7.5 LITIGATION............................................25
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Section 7.6 NO DEFAULT............................................25
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Section 7.7 NO BREACH.............................................25
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Section 7.8 ACTION................................................25
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Section 7.9 APPROVALS.............................................26
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Section 7.10 USE OF CREDIT.........................................26
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Section 7.11 ERISA.................................................26
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Section 7.12 TAXES.................................................26
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Section 7.13 TRUE AND COMPLETE DISCLOSURE..........................26
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Section 7.14 ACCURACY OF INFORMATION...............................26
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Section 7.15 INDEBTEDNESS..........................................27
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Section 7.16 PROPERTY AND LIENS....................................27
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Section 7.17 BLUE SKY REGISTRATIONS................................27
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Section 7.18 FEDERAL REGULATIONS...................................27
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Section 7.19 APPORTIONMENT AMONG FUNDS.............................27
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Section 7.20 NO MATERIAL ADVERSE CHANGE............................27
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SECTION 8. Covenants of the Funds......................................27
Section 8.1 FINANCIAL STATEMENTS..................................27
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Section 8.2 CERTIFICATES; OTHER INFORMATION.......................28
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Section 8.3 NOTICES...............................................29
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Section 8.4 EXISTENCE, ETC........................................29
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Section 8.5 USE OF PROCEEDS.......................................30
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Section 8.6 INSURANCE.............................................31
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Section 8.7 PROHIBITION OF FUNDAMENTAL CHANGES....................31
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Section 8.8 LIMITATIONS ON LIENS..................................32
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Section 8.9 INDEBTEDNESS..........................................32
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Section 8.10 DIVIDEND PAYMENTS.....................................32
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Section 8.11 ASSET COVERAGE; BORROWING LIMITS......................32
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Section 8.12 LINES OF BUSINESS.....................................32
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Section 8.13 MODIFICATIONS OF CERTAIN DOCUMENTS....................33
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SECTION 9. Events of Default...........................................33
SECTION 10. The Administrative Agent....................................36
Section 10.1 APPOINTMENT, POWERS AND IMMUNITIES....................36
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Section 10.2 RELIANCE BY ADMINISTRATIVE AGENT......................36
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Section 10.3 DEFAULTS..............................................37
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Section 10.4 RIGHTS AS A BANK......................................37
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Section 10.5 INDEMNIFICATION.......................................37
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Section 10.6 NON-RELIANCE ON ADMINISTRATIVE AGENTS
AND OTHER BANKS.......................................37
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Section 10.7 FAILURE TO ACT........................................38
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Section 10.8 RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT........38
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SECTION 11. Miscellaneous...............................................39
Section 11.1 WAIVER................................................39
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Section 11.2 NOTICES...............................................39
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Section 11.3 EXPENSES, ETC.........................................39
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Section 11.4 AMENDMENTS, ETC.......................................40
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Section 11.5 SUCCESSORS AND ASSIGNS................................40
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Section 11.6 ASSIGNMENTS AND PARTICIPATIONS........................40
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Section 11.7 SURVIVAL..............................................42
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Section 11.8 CAPTION...............................................42
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Section 11.9 COUNTERPARTS..........................................42
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Section 11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION.............42
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Section 11.11 WAIVER OF JURY TRIAL..................................43
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Section 11.12 TREATMENT OF CERTAIN INFORMATION;
CONFIDENTIALITY.......................................43
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Section 11.13 LIMITED RECOURSE......................................44
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SCHEDULE I - Borrowers & Allocations
SCHEDULE II - Commitments
SCHEDULE III - Custody Agreements
SCHEDULE IV - Distribution Agreements
SCHEDULE V - Investment Management Agreements
SCHEDULE VI - Shareholder Services Agreements
SCHEDULE VII - Specified Existing Affiliates
EXHIBIT 2.7(a) - Form of Note
EXHIBIT 2.11(a) - Form of Designation of New Borrowers
EXHIBIT 6.1(b) - Form of Opinion
EXHIBIT 11.6(b) - Form of Assignment and Acceptance
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 17, 2003 (this
"AGREEMENT") among (i) each fund signatory hereto (each a "FUND" and,
collectively, the "FUNDS") on behalf of itself or on behalf of the series or
portfolios of a Fund, which series and portfolios are listed on SCHEDULE I
beside the name of the Fund of which each series or portfolio is a series or
portfolio (each such Fund acting on behalf of itself and each such series or
portfolio, a "BORROWER" and, collectively, the "BORROWERS"); (ii) each of the
lenders that is a signatory hereto identified under the caption "BANKS" on the
signature pages hereto and each other lender that becomes a "Bank" after the
date hereof pursuant to SECTION 11.6(b) hereof (individually a "BANK" and,
collectively, the "BANKS"); and (iii) JPMORGAN CHASE BANK, a New York banking
corporation, as agent for the Banks (in such capacity, together with its
Successors in such capacity, the "ADMINISTRATIVE AGENT").
WHEREAS, each Fund is an open-end registered investment company under the
Investment Company Act of 1940 for which the Investment Adviser (as defined
below) acts as an investment manager;
WHEREAS, each Borrower has requested the Banks to make Loans (as defined
below) severally and not jointly to each Borrower and to make available to it a
credit facility for the purposes and on the terms and conditions set forth
herein;
WHEREAS, each Bank acknowledges that each Borrower shall be liable
hereunder only for the Loans made to such Borrower hereunder and interest
thereon and for the fees and expenses associated therewith and as otherwise set
forth herein, and that, notwithstanding anything to the contrary herein, each
Borrower's obligations hereunder are several and not joint;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS.
Section 1.1 CERTAIN DEFINED TERMS. As used herein, the following terms
shall have the following meanings (all terms defined in this SECTION 1.1 or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and VICE VERSA):
"ADVISERS ACT" shall mean the Investment Advisers Act of 1940, as amended.
"AFFILIATE": as to any Person, any other Person (other than a Subsidiary)
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For purposes of this definition, "control" of
a Person means the power, directly or indirectly, either to (a) vote 10% or more
of the securities having ordinary voting power for the election of directors of
such Person or (b) direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise.
"APPLICABLE LENDING OFFICE" shall mean, for each Bank, the "Lending Office"
of such Bank (or of an affiliate of such Bank) on the signature pages hereof or
such other office of such Bank (or of an affiliate of such Bank) as such Bank
may from time to time specify to the Administrative Agent and the Borrowers as
the office by which its Loans are to be made and maintained.
"APPLICABLE MARGIN" shall mean 0.50% per annum.
"ASSET COVERAGE" shall mean, with respect to any Borrower, the ratio
(expressed as a percentage) that the value of Total Assets of such Borrower
bears to the aggregate amount of Indebtedness of such Borrower. For the purposes
of calculating the Asset Coverage, the amount of any Indebtedness shall be equal
to the greater of (x) the outstanding amount of such liability or indebtedness,
and (y) the fair market value of all assets securing such liability or
indebtedness.
"BANKRUPTCY CODE" shall mean the Federal Bankruptcy Code of 1978, as
amended from time to time.
"BUSINESS DAY" shall mean any day on which commercial banks are not
authorized or required to close in New York City.
"CAPITAL LEASE OBLIGATIONS" shall mean, for any Person, all obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
"CLOSING DATE" shall mean December 17, 2003.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"COMMISSION" shall mean the Securities and Exchange Commission and any
other similar or successor agency of the United Stales government administering
the Investment Company Act.
"COMMITMENT" shall mean, as to each Bank, the obligation of such Bank to
make Loans in an aggregate principal amount at any one time outstanding up to
but not exceeding the amount set opposite the name of such Bank on SCHEDULE II
or, in the case of a Person that becomes a Bank pursuant to an assignment
permitted under SECTION 11.6(B) hereof, as specified in the respective
instrument of assignment pursuant to which such assignment is effected (as the
same may be reduced at any time or from time to time pursuant to SECTION 2.3
hereof).
"COMMITMENT TERMINATION DATE" shall mean the date which is 364 days
following the date hereof or such earlier date on which the Commitments shall
terminate as provided herein, subject to extension as provided in SECTION 2.10
hereof.
"CONTRACTUAL OBLIGATION" shall mean, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CUSTODY AGREEMENT" shall mean, as to any Fund or each Borrower, as
applicable, the Custody Agreement(s) set forth in SCHEDULE III.
"DEFAULT" shall mean an Event of Default or an event that with notice or
lapse of time or both would become an Event of Default.
"DISTRIBUTION AGREEMENT" shall mean, as to any Fund or each Borrower, as
applicable, the Distribution Agreements set forth on SCHEDULE IV hereto.
"DIVIDEND PAYMENT" shall mean dividends (in cash, Property or obligations)
on, or other payments or distributions on account of, or the setting apart of
money for a sinking or other analogous fund for, or the purchase, redemption,
retirement or other acquisition of, any shares of any class of stock of a
Borrower or of any warrants, options or other rights to acquire the same (or to
make any payments to any Person, such as "phantom stock" payments, where the
amount thereof is calculated with reference to the fair market or equity value
of the Borrower), but excluding dividends payable solely in shares of such
Borrower.
"DOLLARS" and "$" shall mean lawful money of the United States of America.
"ELIGIBLE LENDER" shall mean an entity that is a "bank" (as defined in the
Investment Company Act) but not an "affiliated person" or a "principal
underwriter" (each as defined in the Investment Company Act) of any Borrower or
any "affiliated person" of any such Person, including, without limitation, the
Investment Adviser.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" shall mean any corporation or trade or business that is a
member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which a Fund is a member and (ii) solely for purposes of potential
liability under Section 302(c)(l 1) of ERISA and Section 412(c)(l 1) of the Code
and the lien created under Section 302(f) of ERISA and Section 412(n) of the
Code, described in Section 414(m) or (o) of the Code of which a Fund is a
member.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in SECTION
9 hereof.
"FEDERAL FUNDS RATE" shall mean, for any day, the "offered rate," as
determined by JPMorgan, for overnight federal funds, which rate is determined
from day to day and will be reasonably representative of the market conditions
at the time set.
"FINANCIAL CONTRACTS" shall mean option contracts, options on futures
contracts, futures contracts, forward foreign currency exchange contracts,
options on foreign currencies, repurchase agreements, reverse repurchase
agreements, securities lending agreements, when-issued securities, interest rate
swap, cap, or collar agreements or similar arrangements between a Fund for
account of any Borrower and one or more financial institutions providing for the
transfer or mitigation of interest risks either generally or under specific
contingencies, and other similar arrangements entered into by a Fund for account
of any Borrower in the ordinary course of its business in accordance with the
investment objectives, policies, restrictions and limitations of such Borrower
then in effect.
"FINANCING LEASE": any lease of property, real or personal, the obligations
of the lessee in respect of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
"FUND AFFILIATE" shall mean an "affiliated person" of a Fund as that term
is used in the Investment Company Act. Notwithstanding the foregoing, (a) no
individual shall be a Fund Affiliate solely by reason of his or her being a
director, officer or employee of the Fund and (b) neither the Administrative
Agent nor any Bank shall be a Fund Affiliate.
"GAAP" shall mean generally accepted accounting principles, as in effect
from time to time.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory, or administrative functions of or pertaining
to government.
"GUARANTEE" shall mean a guarantee, an endorsement, a contingent agreement
to purchase or to furnish funds for the payment or maintenance of, or otherwise
to be or become contingently liable under or with respect to, the Indebtedness,
other obligations, net worth, working capital or earnings of any Person, or a
guarantee of the payment of dividends or other distributions upon the stock or
equity interests of any Person, or an agreement to purchase, sell or lease (as
lessee or lessor) Property, products, materials, supplies or services primarily
for the purpose of enabling a debtor to make payment of such debtor's
obligations or an agreement to assure a creditor against loss, and including,
without limitation, causing a bank or other financial institution to issue a
letter of credit or other similar instrument for the benefit of another Person,
but excluding endorsements for collection or deposit in the ordinary course of
business. The terms "GUARANTEE" and "GUARANTEED" used as a verb shall have a
correlative meaning.
"INDEBTEDNESS" shall mean, for any Person: (a) obligations created, issued
or incurred by such Person for borrowed money (whether by loan, the issuance and
sale of debt securities or the sale of Property to another Person subject to an
understanding or agreement, contingent or otherwise, to repurchase such Property
from such Person); (b) obligations of such Person to pay the deferred purchase
or acquisition price of Property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business so long as such trade accounts payable are payable
within 90 days of the date the respective goods are delivered or the respective
services are rendered; (c) Indebtedness of others secured by a Lien on the
Property of such Person, whether or not the respective indebtedness so secured
has been assumed by such Person; (d) obligations of such Person in respect of
letters of credit or similar instruments issued or accepted by banks and other
financial institutions for account of such Person; (e) Capital Lease Obligations
of such Person; and (f) Indebtedness of others Guaranteed by such Person.
"INTERFUND LENDING" shall mean lending by a registered investment company
or an investment portfolio thereof advised by the Investment Adviser to one or
more other registered investment companies or investment portfolios thereof
advised by the Investment Adviser, or borrowing by a registered investment
company or an investment portfolio thereof advised by the Investment Adviser
from one or more other registered investment companies or investment portfolios
thereof advised by the Investment Adviser, in either case pursuant to an
Interfund Lending Exemptive Order issued by the Securities and Exchange
Commission, or otherwise allowed by Applicable Law.
"INTERFUND LENDING EXEMPTIVE ORDER" shall mean an exemptive order,
including any amended or supplemental order, issued by the Securities and
Exchange Commission authorizing Interfund Lending.
"INTERFUND LOAN" shall mean a loan to a Borrower pursuant to an Interfund
Lending arrangement.
"INVESTMENT ADVISER" shall mean American Century Investment Management,
Inc.
"INVESTMENT ADVISER AFFILIATE" shall mean an "affiliated person" of the
Investment Adviser as that term is used in the Investment Company Act.
Notwithstanding the foregoing, (a) no individual shall be an Investment Adviser
Affiliate solely by reason of his or her being a director, officer or employee
of the Investment Adviser and (b) neither the Administrative Agent nor any Bank
shall be an Investment Adviser Affiliate.
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act of 1940, as
amended.
"INVESTMENT MANAGEMENT AGREEMENT" shall mean, as to each Fund and each
Borrower, the Investment Management Agreements set forth on SCHEDULE V hereto.
"JPMORGAN" shall mean JPMorgan Chase Bank, together with its successors and
assigns.
"LIEN" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
"LOANS" shall mean the loans provided for in SECTION 2.1 hereof.
"MAJORITY BANKS" shall mean Banks having more than 51% of the aggregate
amount of the Commitments or, if the Commitments shall have terminated, Banks
holding more than 51% of the aggregate unpaid principal amount of the Loans.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a) the
Property, business, operations, financial condition, prospects, liabilities or
capitalization of a Fund or any Borrower, (b) the ability of a Fund or any
Borrower to perform its obligations hereunder and under the Notes, (c) the
validity or enforceability of this Agreement or of the Notes or (d) the rights
and remedies of the Banks and the Administrative Agent hereunder and under the
Notes.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by a Fund or any
Borrower or any ERISA Affiliate and that is covered by Title IV of ERISA.
"NET ASSET VALUE" shall mean, with respect to any Borrower, the total
assets of such Borrower less the total liabilities of such Borrower, all as
determined in accordance with the methods used by such Borrower in determining
the net asset value of its shares and described in the Prospectus.
"NOTES" shall have the meaning assigned to such term in SECTION 2.7(A).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" shall mean any Borrower, any individual, corporation, company,
voluntary association, partnership, limited liability company, joint venture,
trust, unincorporated organization or government (or any agency, instrumentality
or political subdivision thereof).
"PLAN" shall mean an employee benefit or other plan established or
maintained by a Fund or any ERISA Affiliate and that is covered by Title IV of
ERISA, other than a Multiemployer Plan.
"POST-DEFAULT RATE" shall mean a rate per annum equal to, in the case of a
Borrower, 2% PLUS the aggregate of the Federal Funds Rate and the Applicable
Margin as in effect from time to time, and, in the case of a Bank, 1% plus the
Federal Funds Rate.
"PROPERTY" shall mean any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"PROSPECTUS" shall mean each Borrower's Prospectus and Statement of
Additional Information, as amended or supplemented from time to time, filed with
the Commission pursuant to Rule 497 under the Securities Act of 1933, as
amended.
"REGULATIONS T, U AND X" shall mean, respectively, Regulations T, U and X
of the Board of Governors of the Federal Reserve System (or any successor), as
the same may be modified and supplemented and in effect from time to time.
"RESPONSIBLE OFFICER" shall mean the chairman, vice chairman, president,
vice president, treasurer, secretary, or assistant secretary of each Fund, or,
with respect to financial matters, the treasurer or assistant treasurer of such
Fund.
"SHAREHOLDER SERVICES AGREEMENT" shall mean, as to each Fund or each
Borrower, as applicable, the Shareholder Services Agreements set forth on
SCHEDULE VI hereto.
"SPECIFIED EXISTING FUND AFFILIATE" shall mean each Person that is a Fund
Affiliate on the date hereof and is listed on SCHEDULE VII hereto under the
caption "Specified Existing Fund Affiliates."
"SPECIFIED EXISTING INVESTMENT ADVISER AFFILIATE" shall mean each Person
that is an Investment Adviser Affiliate on the date hereof and is listed on
SCHEDULE VII hereto under the caption "Specified Existing Investment Adviser
Affiliates."
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"SWING LINE COMMITMENT" shall mean the obligation of the Swing Line Lender
to make Swing Line Loans pursuant to SECTION 2.12 hereof in the aggregate
principal amount at any one time outstanding not to exceed $25,000.000.
"SWING LINE LENDER" shall have the meaning assigned to such term in SECTION
2.12 hereof.
"SWING LINE LOANS" shall have the meaning assigned to such term in SECTION
2.12 hereof.
"SWING LINE PARTICIPATION AMOUNT" shall have the meaning assigned to such
term in SECTION 2.14(c) hereof.
"TOTAL ASSETS" with respect to any Borrower, at any time, the value of all
assets of such Borrower which in accordance with GAAP would be classified as
assets on a balance sheet of such Borrower prepared as of such time; PROVIDED,
however, that the term Total Assets shall not include (a) equipment, (b)
securities owned by such Borrower which are in default and (c) deferred
organizational and offering expenses.
Section 1.2 ACCOUNTING TERMS AND DETERMINATIONS. Except as otherwise
expressly provided herein, all accounting terms used herein shall be
interpreted, all determinations with respect to accounting matters hereunder
shall be made, and all financial statements and certificates and reports as to
financial matters required to be furnished to the Bank hereunder shall be
prepared, in accordance with GAAP and the Investment Company Act.
SECTION 2. COMMITMENTS, LOANS, NOTES AND PREPAYMENTS.
Section 2.1 LOANS. Each Bank severally agrees, on the terms and conditions
of this Agreement, to make loans to the Funds in Dollars on behalf of any
Borrower (as designated in the applicable notice of borrowing by a Fund) during
the period from and including the Closing Date to but not including the
Commitment Termination Date in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount of the Commitment of such Bank as
in effect from time to time. Subject to the terms and conditions of this
Agreement, during such period a Fund may, on behalf of a Borrower, borrow, repay
and reborrow the amount of the Commitments by means of Loans.
Section 2.2 PROCEDURE FOR BORROWINGS. A Fund on behalf of a Borrower may
borrow under the Commitments on any Business Day PROVIDED that such Fund shall
give the Administrative Agent notice of each borrowing hereunder as provided in
SECTION 4.5(A) hereof. Each borrowing must be in an amount as set forth in
SECTION 4.4 hereof. Not later than 3:00 p.m. New York time on the date specified
for each borrowing hereunder, each Bank shall make available the amount of the
Loan or Loans to be made by it on such date to the Administrative Agent, at any
account designated by the Administrative Agent, in immediately available funds,
for account of the relevant Fund. The amount so received by the Administrative
Agent shall, subject to the terms and conditions of this Agreement, be made
available to the relevant Fund for the benefit of such Borrower by depositing
the same, in immediately available funds, in an account of the relevant Fund
designated by the relevant Fund and maintained with JPMorgan at its principal
office.
Section 2.3 CHANGES OF COMMITMENTS. (a) The aggregate amount of the
Commitments shall be automatically reduced to zero on the Commitment Termination
Date.
(b) The Funds shall have the right at any time or from time to time upon
three Business Days' notice (i) so long as no Loans are outstanding, to
terminate the Commitments and (ii) to reduce the aggregate unused amount of the
Commitments; PROVIDED that (x) the Funds shall give notice of each such
termination or reduction as provided in SECTION 4.5(B) hereof and (y) each
partial reduction shall be in an aggregate amount at least equal to $5,000,00
(or a larger integral multiple of $1,000,000).
(c) The Commitments once terminated or reduced may not be reinstated.
Section 2.4 COMMITMENT FEE. The Funds shall pay to the Administrative Agent
for account of each Bank a commitment fee on the daily average unused amount of
such Bank's Commitment, for the period from and including the date hereof to but
not including the earlier of the date such Commitment is terminated and the
Commitment Termination Date, at a rate per annum equal to 0.10%. Solely for the
purpose of calculating the commitment fee, Swing Line Loans will not be deemed a
utilization of the aggregate Commitments of all Banks. Accrued commitment fee
shall be payable on each March 31, June 30, September 30 and December 31
(beginning on the first of such dates to occur after the date hereof) and on the
earlier of the date the Commitments are terminated and the Commitment
Termination Date. The Funds shall allocate such commitment fee among the
Borrowers pro rata based on their respective Net Asset Values as at the
respective dates on which such commitment fee is due or otherwise not in
violation of applicable law.
Section 2.5 LENDING OFFICES. The Loans made by each Bank shall be made and
maintained at such Bank's Applicable Lending Office.
Section 2.6 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The failure of any
Bank to make any Loan to be made by it on the date specified therefor shall not
relieve any other Bank of its obligation to make its Loan on such date, but
neither any Bank nor the Administrative Agent shall be responsible for the
failure of any other Bank to make a Loan to be made by such other Bank, and
(except as otherwise provided in SECTION 4.6 hereof) no Bank shall have any
obligation to the Administrative Agent or any other Bank for the failure by such
Bank to make any Loan required to be made by such Bank. The amounts payable by
the Borrowers at any time hereunder and under the Notes to each Bank shall be a
separate and independent debt and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement and the Notes (subject, in the
case of the right to accelerate, to SECTION 9 hereof), and it shall not be
necessary for any other Bank, or the Administrative Agent to consent to, or be
joined as an additional party in, any proceedings for such purposes.
Section 2.7 NOTES.
(a) Each Fund agrees that, upon the request of any Bank to the
Administrative Agent, each Fund will, at such Fund's expense, execute and
deliver to such Bank a promissory note of each Borrower evidencing the Loans of
such Bank to such Borrower, substantially in the form if EXHIBIT 2.7(A) with
appropriate insertions as to date and principal amount (a "NOTE").
(b) The date and amount of each Loan made by each Bank to a Borrower, and
each payment made on account of the principal thereof, shall be recorded by such
Bank on its books and, prior to any transfer of the applicable Note, endorsed by
such Bank on the schedule attached to such Note or any continuation thereof;
PROVIDED that the failure of such Bank to make any such recordation (or any
error in making any such recordation) or endorsement shall not affect the
obligations of a Borrower to make a payment when due of any amount owing
hereunder or under such Note in respect of the Loans evidenced thereby.
(c) No Bank shall be entitled to have its Notes substituted or exchanged
for any reason, or subdivided for promissory notes of lesser denominations,
except in connection with a permitted assignment of all or any portion of such
Bank's Commitment, Loans and Notes pursuant to SECTION 11.6 hereof (and, if
requested by any Bank, the Funds agree to so exchange any Notes).
Section 2.8 OPTIONAL PREPAYMENTS. Subject to SECTION 4.4 hereof, a Borrower
shall have the right to prepay Loans at any time or from time to time, PROVIDED
that such Borrower shall give the Administrative Agent notice of each such
prepayment as provided in SECTION 4.5(A) hereof (and, upon the date specified in
any such notice of prepayment, the amount to be prepaid shall become due and
payable hereunder).
Section 2.9 MANDATORY PREPAYMENTS. If, at any time, (i) the Asset Coverage
of any Borrower shall fall below 300% or (ii) the aggregate amount of Loans made
to a Borrower exceed the limits provided in such Borrower's Prospectus, then,
within three Business Days thereafter, such Borrower shall prepay Loans made to
such Borrower to the extent necessary to ensure that (x) the Asset Coverage is
equal to or greater than 300% or (y) the aggregate amount of Loans made to such
Borrower then outstanding does not after such payments exceed such limits as set
forth in such Borrower's Prospectus or the Investment Company Act, as the case
may be.
Section 2.10 EXTENSION OF COMMITMENT TERMINATION DATE.
(a) The Funds may, by notice to the Administrative Agent (which shall
promptly notify the Bank,) given not less than 60 days and not more the 90 days
prior to the Commitment Termination Date then in effect (the "EXISTING
COMMITMENT TERMINATION DATE"), request that the Banks extend the Commitment
Termination Date for an additional 364 days from the Existing Commitment
Termination Date. Each Bank, acting in its sole discretion, shall, by notice
(which shall be irrevocable) to the Funds and the Administrative Agent given no
earlier than the date that is 30 days prior to the Existing Commitment
Termination Date (herein, the "CONSENT DATE") and no later than the date that is
three Business Days after the Consent Date, advise the Funds whether or not such
Bank agrees to such extension; PROVIDED that each Bank that determines not to
extend the Commitment Termination Date (a "NON-EXTENDING BANK") shall notify the
Administrative Agent (which shall notify the Banks) of such fact promptly after
such determination (but in any event no later than the date three Business Days
after the Consent Date) and any Bank that does not advise the Funds on or prior
to the date three Business Days after the Consent Date that such Bank agrees to
such extension shall be deemed to be a Non-Extending Bank. The election of any
Bank to agree to such extension shall not obligate any other Bank to so agree.
(b) The Funds shall have the right on or before the Existing Commitment
Termination Date to request that the Administrative Agent, in good faith, seek
to replace each Non-Extending Bank with, and otherwise add to this Agreement,
one or more other banks (which may include any Bank, each prior to the Existing
Commitment Termination Date, an "ADDITIONAL COMMITMENT BANK"), each of which
Additional Commitment Banks shall have entered into an agreement in form and
substance satisfactory to the Funds and the Administrative Agent pursuant to
which such Additional Commitment Bank shall, effective as of the Existing
Commitment Termination Date, undertake a Commitment specified therein and
otherwise become obligated as a Bank hereunder (and, if any such Additional
Commitment Bank is already a Bank, its Commitment shall be in addition to such
Bank's Commitment hereunder on such date). The Funds shall also have the right
to replace each Non-Extending Bank in the same manner described herein, except
that any bank selected by the Funds must be approved by the Administrative Agent
(which approval shall not be unreasonably withheld).
(c) If (and only if) the total of the Commitments of the Banks that have
agreed so to extend the Commitment Termination Date and the additional
Commitments of the Additional Commitment Banks shall be at least 100% of the
aggregate amount of the Commitments in effect immediately prior to the date that
is three Business Days after the Consent Date, then, effective as of the
Existing Commitment Termination Date, (i) the Existing Commitment Termination
Date shall be extended to the date falling 364 days after the Existing
Commitment Termination Date (except that, if such date is not a Business Day,
such Commitment Termination Date as so extended shall be the next preceding
Business Day), (ii) each Additional Commitment Bank shall thereupon become a
"Bank" for all purposes of this Agreement and (iii) the Commitment of each
Non-Extending Bank shall terminate.
(d) Notwithstanding the foregoing clauses (a) through (c), the extension of
the Existing Commitment Termination Date shall not be effective with respect to
any Bank unless:
(i) no Default shall have occurred and be continuing on each of the date of
the notice requesting such extension, on the Consent Date and on the Existing
Commitment Termination Date;
(ii) each of the representations and warranties made by the Funds and
Borrowers in SECTION 7 hereof shall be true and complete on and as of each of
the date of the notice requesting such extension, the Consent Date and the
Existing Commitment Termination Date with the same force and effect as if made
on and as of such date (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific date); and
(iii) each Non-Extending Bank shall have been paid in full by the Funds all
amounts due to such Bank hereunder on or before the Existing Termination Data.
Section 2.11 DESIGNATION OF ADDITIONAL BORROWER AMENDMENTS TO SCHEDULE I.
(a) Other series of each Fund and other investment companies registered
under the investment Company Act, in either case (a) which have at least
$2,000,000 in Total Assets, (b) are (I) equity funds, (II) fixed income funds,
or (III) any combination thereof, in each case whether investing in domestic or
foreign securities or any combination thereof, and (c) for which the Investment
Adviser or an Investment Adviser Affiliate acts as the investment manager, may,
with the prior written consent of the Administrative Agent and each Bank, become
parties to this agreement in addition to those Borrowers listed in SCHEDULE I,
and be deemed Borrowers for all purposes of this Agreement by executing an
instrument substantially in the form of EXHIBIT 2.11(A) (with such changes
therein as may be approved by the Administrative Agent and the Banks), which
instrument shall (x) have attached to it a copy of this Agreement (as the same
may have been amended) with a revised Schedule I reflecting the participation of
such additional series or investment company and any prior revisions to SCHEDULE
I effected in accordance with the terms hereof arid (y) be accompanied by the
documents and instruments required to be delivered by the Borrowers pursuant to
Section 6 hereof, including, without limitation, an opinion of counsel for the
Funds substantially in the form of EXHIBIT 6.1(B).
(b) No series of any Fund or investment company shall be admitted as a
party to this Agreement as a Borrower unless at the time of such admission and
after giving effect thereto: (i) the representations and warranties set forth in
SECTION 7 hereof shall be true and correct with respect to such Borrower; (ii)
such Borrower shall be in compliance in all material respects with all of the
terms and provisions set forth herein on its part to be observed or performed at
the time of the admission and after giving effect thereto; and (iii) no Default
or Event of Default with respect to such Borrower, nor any event which with the
giving of notice or expiration of any applicable grace period or both would
constitute such a Default or Event of Default with respect to such Borrower,
shall have occurred and be continuing.
Section 2.12 SWING LINE COMMITMENT. Subject to the terms and conditions
hereof, Bank of America (in such capacity, the "SWING LINE LENDER") agrees to
make available to each Borrower a portion of the credit otherwise available
under the Commitments from time to time by making swing line loans ("SWING LINE
Loans") to such Borrower in an aggregate principal amount not to exceed at any
one time outstanding the Swing Line Commitment (PROVIDED THAT the Swing Line
Loans outstanding at any time, when aggregated with the Swing Line Lender's
other outstanding Loans hereunder, shall not exceed the Swing Line Lender's
Commitment then in effect); and PROVIDED FURTHER THAT, on the date of the making
of any Swing Line Loan, the sum of the aggregate principal amount of all
outstanding Loans and Swing Line Loans shall not exceed the total Commitments.
During the Commitment Period applicable to each Borrower, such Borrower may use
the Swing Line Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof.
Section 2.13 PROCEDURE FOR SWING LINE BORROWING. Whenever a Borrower
desires that the Swing Line Lender make Swing Line Loans under SECTION 2.12
hereof, the Borrower shall give the Swing Line Lender irrevocable telephonic
notice confirmed promptly in writing (which telephonic notice must be received
by the Swing Line Lender not later than 3:00 P.M., New York City time, on the
proposed date specified for such borrowing), specifying the amount of each
requested Swing Line Loan. Each borrowing under the Swing Line Commitment shall
be in an amount equal to $100,000 or an integral multiple of $100,000 in excess
thereof. Not later than 5:00 P.M., New York City time, on the date specified in
a notice by the Borrower in respect of Swing Line Loans, the Swing Line Lender
shall make available to the Administrative Agent for the account of the Borrower
at the office of the Administrative Agent specified in SECTION 11.2 hereof an
amount in immediately available funds equal to the amount of the Swing Line Loan
to be made by the Swing Line Lender. The proceeds of such Swing Line Loan will
then be made available to the Borrower on such date specified for such borrowing
by the Administrative Agent transferring by wire to the custodian of and for the
account of the Borrower the aggregate of the amounts made available to the
Administrative Agent by the Swing Line Lender in immediately available funds.
Section 2.14 REFUNDING OF SWING LINE LOANS.
(a) The Swing Line Lender, at any time in its sole and absolute discretion
may, and on the seventh day (or if such day is not a Business Day, the next
Business Day) after the date of such borrowing with respect to any Swing Line
Loans to the Borrower shall, on behalf of the Borrower (and the Borrower hereby
irrevocably directs the Swing Line Lender to so act on its behalf), upon notice
given by the Swing Line Lender no later than 10:00 A.M., New York City time, on
the relevant refunding date, request each Bank to make, and each Bank hereby
agrees to make, a Loan to the Borrower, at the rate set forth in SECTION 3.2
hereof, in the pro rata amount determined pursuant to SECTION 4.2. hereof equal
to the amount of such Swing Line Loans of the Borrower (the "REFUNDED SWING LINE
LOANS") outstanding on the date of such notice, to repay the Swing Line Lender.
Each Bank shall make the amount of such Loan available to the administrative
Agent at its office set forth in SECTION 11.2 hereof in immediately available
funds, no later than 1:00 P.M., New York City time, on the date of such notice.
The proceeds of such Loans shall be distributed by the Administrative Agent to
the Swing Line Lender and immediately applied by the Swing Line Lender to repay
the Refunded Swing Line Loans. Effective on the date such Loans are made, the
portion of the Swing Line Loans so paid shall no longer be outstanding as Swing
Line Loans.
(b) The making of any Swing Line Loan hereunder shall be subject to the
satisfaction of the applicable conditions precedent thereto set forth in SECTION
6 hereof (unless otherwise waived in accordance with SECTION 11.4 hereof).
(c) If prior to the making of a Loan to the Borrower pursuant to SECTION
2.14(A) hereof one of the events described in SECTIONS 9(F) or 9(G) hereof shall
have occurred with respect to the Borrower, each Bank severally, unconditionally
and irrevocably agrees that it shall purchase a participating interest in the
applicable Swing Line Loans ("UNREFUNDED SWING LINE LOANS") in an amount equal
to the amount of Loans which would otherwise have been made by such Bank
pursuant to SECTION 2.14(A) hereof. Each Bank will immediately transfer to the
Administrative Agent, in immediately available funds, the amount of its
participation (the "SWING LINE PARTICIPATION AMOUNT"), and the proceeds of such
participation shall be distributed by the Administrative Agent to the Swing Line
Lender in such amount as will reduce the amount of the participating interest
retained by the Swing Line in its Swing Line Loans to the amount of the Loans
which were to have been made by it pursuant to SECTION 2.14(A) hereof.
(d) Whenever, at any time after the Swing Line Lender has received from any
Bank such Lender's Swing Line Participation amount, the Swing Line Lender
receives any payment on account of the Swing Line Loans, the Swing Line Lender
will distribute to such Bank its Swing Line Participation Amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Bank's pro rate portion of such
payment if such payment is not sufficient to pay the principal of and interest
on all Swing Line Loans then due); PROVIDED, HOWEVER, that in the event that
such payment received by die Swing Line Lender is required to be returned, such
Bank will return to the Swing Line Lender any portion thereof previously
distributed to it by the Swing Line Lender.
(e) Each Bank's obligation to make the Loans referred to in SECTION 2.14(A)
hereof and to purchase participating interests pursuant to SECTION 2.14(C)
hereof shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Bank may have against the Swing
Line Lender or any other Person for any reason whatsoever, (ii) the occurrence
or continuance of a Default or an Event of Default or the failure to satisfy any
of the other conditions specified in SECTION 6 hereof, (iii) any adverse change
in the condition (financial or otherwise) of the Borrower; (iv) any breach of
this Agreement or any Note by the Borrower or the Bank, or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
Section 2.15 INTERFUND LENDING. (a) Notwithstanding anything in this
Agreement to the contrary (including, without limitation, Sections 8.8 and 8.9
hereof), Interfund Lending shall be expressly permitted hereunder, and the mere
making or receipt of an Interfund Loan in and of itself shall not, with respect
to any Borrower a party thereto (as a lender or a borrower), constitute a
violation of any condition precedent, representation or covenant contained
herein or constitute a Default or Event of Default; PROVIDED that after giving
effect to such Interfund Loan all other terms and conditions of this Agreement
are satisfied, and PROVIDED FURTHER, that:
(i) Such Interfund Lending (1) is not otherwise prohibited by law, (2) has
been duly authorized, (3) is consistent with the terms of the
Interfund Lending Exemptive Order, (4) is not in contravention of the
Borrower's Prospectus, and (5) is deemed to be Indebtedness for
purposes of calculating the Asset Coverage Ratio in this Agreement as
it applies to the Borrower;
(ii) A Borrower may not be a lender of an Interfund Loan at any time during
which the Borrower has any Loan outstanding;
(iii)If, at any time, an Interfund Loan is outstanding to a Borrower that
has any Loans outstanding as well, and if at such time the Asset
Coverage Ratio for the Borrower shall be less than the required Asset
Coverage Ratio for the Borrower pursuant to this Agreement, then the
Borrower shall repay such outstanding Interfund Loans and Loans on a
pro rata basis and on the same repayment schedule (subject, in any and
all event, to such Borrower's obligation to prepay in accordance with
2.9 hereof) to the extent necessary to ensure that the Asset Coverage
Ratio of all borrowings of the Borrower after such payments is in
compliance with applicable covenants concerning minimum Asset Coverage
Ratios set forth in this Agreement;
(iv) If any payment with respect to an Interfund Loan would cause the Asset
Coverage Ratio for a Borrower to be less than the required Asset
Coverage Ratio for the Borrower pursuant to this Agreement, then the
Borrower shall make any payments with respect to such outstanding
Interfund Loans on a pro rata basis with payments with respect to
Loans to the extent necessary to ensure that the Asset Coverage Ratio
of all borrowings of the Borrower after such payments is in compliance
with applicable covenants concerning minimum Asset Coverage Ratios set
forth in this Agreement;
(v) A default by a Borrower with respect to an Interfund Loan shall
constitute an Event of Default with respect to the Borrower for
purposes of this Agreement;
(vi) If a Default or Event of Default with respect to a Borrower has
occurred and is continuing under this Agreement other than as
specified above in Section 2.15(a)(iii), then any payments made with
respect to outstanding Interfund Loans shall be made on a pro rata
basis with payments with respect to Loans until such Default or Event
of Default is cured or waived;
(vii)If at any time a Borrower should secure an Interfund Loan or Interfund
Loans with collateral, then the Borrower shall collateralize each Loan
to such Borrower under this Agreement (I) in substantially the same
manner and to substantially the same extent as is required with
respect to each Interfund Loan to the Borrower, as more particularly
described in the Interfund Lending Exemptive Order and (II) with
collateral having substantially the same liquidity and substantially
similar credit characteristics as that of the collateral securing such
Interfund Loan or Interfund Loans, PROVIDED that the collateral
coverage percentage ratio for Loans shall not be less than the greater
of (x) 102% or (y) the collateral coverage ratio for Interfund Loans;
and
(viii) For purposes of calculating the Asset Coverage Ratio of a Borrower,
the amount equal to the aggregate value of the collateral securing an
Interfund Loan or Loan minus the amount of such Interfund Loan or
Loan, respectively, shall be subtracted from the value of Total Assets
in the numerator of such Asset Coverage Ratio.
(b) Without otherwise limiting the purposes for which proceeds of a Loan
may be used as specified in Section 8.5 of this Agreement, a Borrower shall be
expressly permitted to use the proceeds of a Loan to repay an outstanding
Interfund Loan of the Borrower, subject to the conditions set forth in paragraph
(a) of this Section 2.15 and the other conditions of this Agreement (including
without limitation Section 8.5 hereof).
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST.
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Section 3.1 REPAYMENT OF LOANS. Each Borrower hereby severally and
unconditionally, but neither jointly nor jointly and severally promises to pay
the Administrative Agent for account of each Bank the principal of each Loan
made by such Bank to such Borrower, and each Loan shall mature, on the earlier
of (a) the date that is 30 calendar days after the date such Loan was made and
(b) the Commitment Termination Date.
Section 3.2 INTEREST.
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(a) Each Borrower hereby promises severally and unconditionally, but
neither jointly nor jointly and severally, to pay to the Administrative Agent
for the account of each Bank interest on the unpaid principal amount of each
Loan (which, for purposes of this SECTION 3.2, shall include each Swing Line
Loan) made by such Bank to such Borrower, for the period from and including the
date of such Loan to but excluding the date such Loan shall be paid in full, at
a rate equal to the Federal Funds Rate (as in effect from tune to time) PLUS the
Applicable Margin.
(b) Notwithstanding the foregoing, each Borrower hereby promises to pay to
the Administrative Agent for the account of each Bank interest at the
Post-Default Rate on any principal of any Loan made by such Bank to such
Borrower and on any other amount payable by such Borrower in respect of such
Loan hereunder or under the applicable Note held by such Bank to or for account
of such Bank, that shall not be paid to the Administrative Agent for the benefit
of the Banks in full when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise), for the period from and including the due
date thereof to but excluding the date the same is paid in full.
(c) Accrued interest on each Loan shall be payable in arrears upon the
payment or prepayment thereof (but only on the principal amount so paid or
prepaid); except that interest payable at the Post-Default Rate pursuant to
SECTION 3.2(B) hereof shall be payable from time to time on demand. Promptly
after the determination of any interest rate provided for herein or any change
therein, the Administrative Agent shall give notice thereof to the Banks.
SECTION 4. PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
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Section 4.1 PAYMENTS.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by a Borrower under this
Agreement and the Notes, shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Administrative Agent
(Account No. 323-525369, or any other account designated by the Administrative
Agent), not later than 2:00 p.m. New York time on the date on which such payment
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day), PROVIDED that if
a new Loan to a Borrower is to be made by any Bank on a date such Borrower is to
repay any principal of an outstanding Loan made by such Bank to such Borrower,
such Bank shall apply the proceeds of such new Loan to the payment of the
principal to be repaid and only an amount equal to the difference between the
principal to be borrowed and the principal to be repaid shall be made available
by such Bank to the Administrative Agent as provided in SECTION 2.2 hereof or
paid by such Borrower to the Administrative Agent pursuant to this SECTION 4.1
as the case may be.
(b) Each Borrower shall, at the time of making each payment under this
Agreement or any Note for the account of any Bank, specify to the Administrative
Agent (which shall so notify the intended recipient(s) thereof) the identity of
such Borrower, the Loans or other amounts payable by such Borrower hereunder to
which such payment is to be applied (and in the event that such Borrower fails
to so specify, or if an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment for account of such Borrower to
the Banks for application in such manner as it or the Majority Banks, subject to
SECTION 4.2 hereof, may determine to be appropriate).
(c) Each payment received by the Administrative Agent under this Agreement
or any Note for account of any Bank shall be paid by the Administrative Agent
promptly to such Bank, in immediately available funds, for account of such
Bank's Applicable Lending Office for the Loan or other obligation in respect of
which such payment is made.
(d) If the due date of any payment under this Agreement or any Note would
otherwise fall on a day that is not a Business Day, such date shall be extended
to the next succeeding Business Day, and interest shall be payable for any
principal so extended for the period of such extension.
Section 4.2 PRO RATA TREATMENT. Except to the extent otherwise provided herein:
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(a) Each borrowing from the Banks under SECTION 2.1 hereof shall be made
from the Banks pro rata according to the amounts of their respective unutilized
Commitments.
(b) Each payment of commitment fee under SECTION 2.4 hereof shall be made
to the account of the Banks pro rata according to the amounts of their
respective unutilized Commitments.
(c) Each termination or reduction of the amount of Commitments under
Section 2.3 hereof shall be applied to the respective Commitments of the Banks
pro rata according to the amounts of their respective Commitments.
(d) Each payment or prepayment of principal of Loans by a Borrower shall be
made for account of the Banks pro rata in accordance with the respective unpaid
principal amounts of the Loans held by them; and
(e) Each payment of interest on Loans by a Borrower shall be made for
account of the Banks pro rata in accordance with the amounts of interest on such
Loans then due and payable to the respective Banks.
Section 4.3 COMPUTATIONS.
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(a) Interest on Loans and commitment fees shall be computed on the basis of
a 360-day year for the actual days elapsed.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
each Borrower and the Banks in the absence of manifest error. The Administrative
Agent shall, at the request of a Borrower deliver to such Borrower a statement
showing the quotations used by the Administrative Agent in determining any
interest rate pursuant to SECTION 3.2 hereof.
Section 4.4 MINIMUM AMOUNTS. Each borrowing shall be in an aggregate amount
at least equal to $500,000 or a larger integral multiple of $100,000. Each
partial prepayment of principal of Loans shall be in an aggregate amount at
least equal to $100,000 or a larger integral multiple of $100,000.
Section 4.5 CERTAIN NOTICES.
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(a) Notices by a Borrower to the Administrative Agent of borrowings and
optional prepayments of Loans shall be irrevocable and shall be effective only
if received by the Administrative Agent not later than 12:00 noon New York time
on the date of the relevant borrowing or prepayment. Each such notice of
borrowing or optional prepayment shall specify the Borrower for whose benefit
such borrowing or prepayment, or on whose behalf such borrowing or prepayment is
to be made1, the Loans to be borrowed or prepaid and the amount (subject to
SECTION 4.4 hereof) of each Loan to be borrowed or prepaid and the date of
borrowing or optional prepayment (which shall be a Business Day).
(b) Notices by a Borrower to the Administrative Agent of terminations or
reductions of the Commitments shall be irrevocable and shall be effective only
if received in a timely manner, as set forth in SECTION 2.3(B) hereof, by the
Administrative Agent. Each such notice of termination or reduction shall specify
the amount of the Commitments to be terminated or reduced.
(c) The Administrative Agent shall promptly notify the Banks of the
contents of each such notice.
Section 4.6 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have been notified by a Bank or a Borrower (the
"PAYOR") prior to the date on which the Payor is to make payment to the
Administrative Agent of (in the case of a Bank) the proceeds of a Loan to be
made by such Bank hereunder or (in the case of a Borrower) a payment to the
Administrative Agent for account of one or more of the Banks hereunder (such
payment being herein called the "REQUIRED PAYMENT"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date; and, if the Payor has not in fact made the
Required Payment to the Administrative Agent, the recipient(s) of such payment
shall, on demand, repay to the Administrative Agent the amount so made available
together with interest thereon (such interest to be, in the case of a Bank, the
Federal Funds Rate and, in the case of a Borrower, as set forth in SECTION
3.2(A) hereof) in respect of each day during the period commencing on the date
(the "Advance Date") such amount was so made available by the Administrative
Agent until the date the Administrative Agent recovers such amount and, if such
recipient(s) shall fail promptly to make such payment, the Administrative Agent
shall be entitled to recover such amount, on demand, from the Payor, together
with interest as aforesaid, PROVIDED that if neither the recipient(s) nor the
Payor shall return the Required Payment to the Administrative Agent within three
Business Days of the Advance Date, then, retroactively to the Advance Date, the
Payor and the recipient(s) shall each be obligated to pay interest on the
Required Payment as follows:
(a) If the Required Payment shall represent a payment to be made by a
Borrower to the Banks, such Borrower and the recipient(s) shall each be
obligated retroactively to the Advance Date to pay interest in respect of the
Required Payment at the Post-Default Rate (without duplication of the obligation
of such Borrower under SECTION 3.2 hereof to pay interest on the Required
Payment at the Post-Default Rate), it being understood that the return by the
recipient(s) of the Required Payment to the Administrative Agent shall not limit
such obligation of such Borrower under said SECTION 3.2 to pay interest at the
Post-Default Rate in respect of the Required Payment; and
(b) If the Required Payment shall represent proceeds of a Loan to be made
by the Banks to a Borrower, such Borrower and the Payor shall each be obligated
retroactively to the Advance Date to pay interest in respect of the Required
Payment pursuant to the rate specified in Section 3.2 hereof (without
duplication of the obligation of such Borrower under SECTION 3.2 hereof to pay
interest on the Required Payment), it being understood that the return by such
Borrower of the Required Payment to the Administrative Agent shall not limit any
claim such Borrower may have against the Payor in respect of such Required
Payment.
Section 4.7 SHARING OF PAYMENTS, ETC.
------------------------
(a) Each Fund agrees that, in addition to (and without limitation of) any
right of set-off, banker's lien or counterclaim a Bank may otherwise have, each
Bank shall be entitled, at its option (to the fullest extent permitted by law),
to set off and apply any deposit (general or special, fine or demand,
provisional or final), or other indebtedness, held by it for the credit or
account of a Borrower at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Bank's Loans to
such Borrower or any other amount payable by such Borrower to such Bank
hereunder, that is not paid when due (regardless of whether such deposit or
other indebtedness are then due to such Borrower), in which case it shall
promptly notify such Borrower and the Administrative Agent thereof, PROVIDED
that such Bank's failure to give such notice shall not affect the validity
thereof.
(b) If any Bank shall obtain from a Borrower payment of any principal of or
interest on any Loan owing to it or payment of any other amount under this
Agreement through the exercise of any right of set-off, banker's lien or
counterclaim or similar right or otherwise (other than from the Administrative
Agent as provided herein), and, as a result of such payment, such Bank shall
have received a greater percentage of the principal of or Interest on the Loans
made to such Borrower or such other amounts then due to such Bank hereunder by
such Borrower than the percentage received by any other Bank, it shall promptly
purchase from such other Banks participations in (or, if and to the extent
specified by such Bank, direct interests in) such Loans or such other amounts,
respectively, owing to such other Banks (or in interest duo thereon, as the case
may be) in such amounts, and make such other adjustments from time to time as
shall be equitable, to the end that all the Banks shall share the benefit of
such excess payment (net of any expenses that may be incurred by such Bank in
obtaining or preserving such excess payment) pro rate in accordance with the
unpaid principal of and/or interest on such Loans or such other amounts,
respectively, owing to each of the Banks. To such end all the Banks shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Each Fund agrees that any Bank so purchasing such a participation (or
direct interest) may exercise all rights of set-off, banker's lien, counterclaim
or similar rights with respect to such participation as fully as if such Bank
were a direct holder of Loans or other amounts (as the case may be) owing to
such Bank in the amount of such participation (or direct interest).
(d) Nothing contained herein shall require any Bank to exercise any such
right or shall affect the right of any Bank to exercise, and retain the benefits
of exercising, any such right with respect to any other indebtedness or
obligation of a Borrower. If, under any applicable bankruptcy, insolvency or
other similar law, any Bank receives a secured claim in lieu of a set-off to
which this SECTION 4.7 applies, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Banks entitled under this SECTION 4.7 to share in the benefits
of any recovery on such secured claim.
Section 4.8 REQUIREMENTS OF LAW.
-------------------
(a) If any Bank shall have determined that the adoption of or any change in
any applicable law, rule, or regulation, or any change in any applicable law,
rule or regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or compliance by such
Bank or any corporation controlling such Bank with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
such authority, central bank, or comparable authority made subsequent to the
date hereof shall have the effect of reducing the rate of return on such Bank's
or such corporation's capital as a consequence of its obligations hereunder to a
level below that which such Bank or such corporation could have achieved but for
such adoption, change, or compliance (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy) by an amount
determined by such Bank, in its reasonable discretion, to be material, then from
time to time, each Borrower shall promptly pay to such Bank such additional
amount or amounts as will compensate such Bank for such reduction.
(b) If any Bank becomes entitled to claim any additional amounts pursuant
to this SECTION 4.8, it shall promptly notify the Borrowers (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled
by providing a certificate setting forth in reasonable detail the basis for the
claim for additional amounts, the amounts required to be paid by the Borrowers
to such Bank, and the computations made by such Bank to determine the amounts;
PROVIDED that such Bank shall not be required to disclose any confidential
information. Such certificate as to any additional amounts payable pursuant to
this SECTION 4.8(B) submitted by such Bank to the Borrowers (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this SECTION 4.8 shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder. No
Borrower shall be responsible to compensate such Bank for additional amounts
attributable to another Borrower's Loans, (c) Failure or delay on the part of
any Bank to demand compensation pursuant to this SECTION 4.8 shall not
constitute a waiver of such Bank's right to demand such compensation; PROVIDED
that the Borrowers shall not be required to compensate a Bank pursuant to this
SECTION 4.8 for any increased costs or reductions incurred more than 270 days
prior to the date that such Bank notifies the Borrower of the change in the
applicable law, rule, or regulation giving rise to such increased costs or
reductions and of such Bank's intention to claim compensation therefore;
PROVIDED FURTHER that, if the change in the applicable law, rule, or regulation
giving rise to such increased costs or reductions is retroactive, then the 270
day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 5. U.S. TAXES.
----------
(a) All payments made by any Borrower under this Agreement or any Note
shall be made free and clear of, and without deduction or withholding for or on
account of, any resent or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
all present and future income taxes and franchise taxes (imposed in lieu of net
income taxes) imposed on the Administrative Agent or any Bank as a result of a
present or former connection between the Administrative Agent or such Bank and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Bank having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any Note). If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded
Taxes") are required to be withheld from any amounts payable to the
Administrative Agent or any Bank hereunder or under any Note, the amounts so
payable to the Administrative Agent or such Bank shall be increased to the
extent necessary to yield to the Administrative Agent or such Bank (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified on this Agreement, PROVIDED,
HOWEVER, that a Borrower shall not be required to increase any such amounts
payable to arty Bank that is not organized under the laws of the U.S. or a state
thereof if such Bank falls to comply with the requirements of paragraph (b) of
this Section. Whenever any Non-Excluded Taxes are payable by a Borrower, as
promptly as possible thereafter, such Borrower shall send to the Administrative
Agent for its own account or for the account of such Bank. as the case may be. a
certified copy of an original official receipt received by such Borrower showing
payment thereof. If a Borrower fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the Administrative Agent
the required receipts or other required documentary evidence, such Borrower
shall indemnify the Administrative Agent and the Banks for any incremental
taxes, interest or penalties that may become payable by the Administrative Agent
or any Bank as a result of any such failure. The agreements in this Section
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
(b) Each Bank that is not incorporated under the laws of the U.S. or a
state thereof shall:
(i) deliver to the Investment Adviser and the Administrative Agent (A) two
duly completed copies of U.S. Internal Revenue Service Form 1001 or
4224, or successor applicable form, as the case may be, and (B) and
Internal Revenue Service From W4 or W-9, or successor applicable form,
as the case may be;
(ii) deliver to the Investment Adviser and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Investment Adviser; and
(iii)obtain such extensions of time for filing and complete such forms or
certifications as may reasonably be requested by the Investment
Adviser or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank so advises the Investment Adviser and the
Administrative Agent. Such Bank shall certify (A) in the case of a Form 1001 or
4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any U.S. federal income taxes and (B) in the case of
a Form W-8 or W-9, that it is entitled to an exemption from U.S. backup
withholding tax. Each Person that shall be subject to an assignment or
participation pursuant to SECTION 11.6 hereof shall, upon the effectiveness of
the related transfer, be required to provide all of the forms and statements
required pursuant to this SECTION 5, provided that in the case of a Person
subject to a participation, such Person shall furnish all required forms and
statements to the Bank from which the related participation shall have been
purchased.
(c) If any Bank shall receive a credit or refund from a taxing authority
with respect to, and actually resulting from, an amount of Non-Excluded Taxes
actually paid to or on behalf of such Bank by a Borrower (a "Tax Credit"), such
Bank shall promptly pay to such Borrower the amount so received with respect to
the Tax Credit if such Tax Credit is not received by such Bank in the form of
cash, such Bank shall pay the amount of such Tax Credit not later than the time
prescribed by applicable law for filing the return (including extensions of
time) for such Bank's taxable period which includes the period in which such
Bank receives the economic benefit of such Tax Credit. In any event, the amount
of any Tax Credit payable by a Bunk to a Borrower pursuant to this clause (c)
shall not exceed the actual amount of cash refunded to, or credits received and
usable (in accordance with the actual practices then in use by such Bank) by,
such Bank from a taxing authority. In determining the amount of any Tax Credit,
a Bank may use such apportionments and attribution rules as such bank
customarily employs in allocating taxes among its various operations and income
sources and such determination shall be conclusive absent manifest error. Each
Borrower further agrees promptly to return to a Bank the amount paid to such
Borrower with respect to a Tax Credit by such Bank if such Bank is caused to
repay, or is determined to be ineligible for, a Tax Credit for such amount and
agrees that (i) neither the Administrative Agent nor any Bank shall be obligated
to provide such Borrower with details of the tax position of the Administrative
Agent or such Bank (as the case may be) and (ii) such Borrower shall have no
right to inspect any records (including tax returns) of the Administrative Agent
or such Bank (as the case may be).
SECTION 6. CONDITIONS PRECEDENT.
--------------------
Section 6.1 INITIAL LOAN. The obligation of any Bank to make its initial
Loan hereunder is subject to the conditions precedent (which conditions
precedent apply to and shall be satisfied by the Borrowers severally) that the
Administrative Agent shall have received the following documents (with, in the
case of clauses (a), (b), (c), (d), and (e) below, sufficient counterparts or
copies, as the case may be, for each Bank), each of which shall be satisfactory
to the Administrative Agent (and to the extent specified below, to each Bank) in
form and substance:
(a) RELATED AGREEMENTS. (i) True and correct copies, certified as to
authenticity by each Fund, of the most recent Prospectus for each Borrower, the
current registration statement for each Borrower, the most recent annual and
semi-annual financial reports for each Borrower, (ii) with respect to the
Shareholder Services Agreement for each Borrower, the Custody Agreement far each
Borrower, the Distribution Agreement for each Borrower, and the Investment
Management Agreement of each Fund in which the assets of each Borrower are
invested, certified copies of any amendments thereto that have an effective date
subsequent to December 18, 1998 or, alternatively, a certificate on behalf of
each Borrower that no such amendments exist and that such documents, as in
effect as of December 18, 1998, are still in full force and effect, and (iii)
such other documents or instruments as may be reasonably requested by the
Administrative Agent, including, without limitation, a copy of any debt
instrument, security agreement or other material contract to which any Borrower
may be a parry.
(b) CORPORATE DOCUMENTS. Certified copies of the charter and by-laws (or
equivalent documents) of each Fund and of all corporate authority for each Fund
(including, without limitation, board of director resolutions) with respect to
the execution, delivery and performance of this Agreement and the Notes and each
other document to be delivered by each Fund from time to time in connection
herewith and the Loans hereunder (and the Administrative Agent and each Bank may
conclusively rely on such certificate until it receives notice in writing from
each Fund to the contrary).
(c) INCUMBENCY CERTIFICATE. A certificate of each Fund, dated the Closing
Date, as to the incumbency and signature of the officers of such Fund executing
this Agreement or any Notes executed by the Secretary or any Assistant Secretary
of such Fund, satisfactory in form and substance to the Administrative Agent.
(d) OPINION OF COUNSEL TO THE FUNDS. An opinion, dated the date hereof, of
Charles C.S. Park, Assistant General Counsel of American Century Investment
Management, Inc., counsel to the Funds and each Borrower, substantially in the
form of EXHIBIT 6.1(B) (and the Funds and each Borrower hereby instruct such
counsel to deliver such opinion to the Banks and the Administrative Agent).
(e) CREDIT AGREEMENT. Executed copies of this Agreement and all related
documents in form and substance reasonably satisfactory to each Bank.
(f) NOTES. If requested pursuant to SECTION 2.7(A) hereof, the Notes, duly
completed and executed for each Bank.
(g) OTHER DOCUMENTS. Such other documents as the Administrative Agent or
any Bank or special New York counsel to JPMorgan may reasonably request.
The obligation of any Bank to make its initial Loan hereunder is also subject to
the payment by the Funds of such fees as the Funds shall have agreed to pay or
deliver to any Bank or the Administrative Agent in connection herewith,
including, without limitation, the reasonable fees and expenses of Xxxxx Xxxxxxx
Xxxxxxx & Xxxxx LLP, special New York counsel to JPMorgan, in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the Notes and the making of the Loans hereunder (to the extent that statements
for such fees and expenses have been delivered to the Funds). The Funds shall
allocate such fees and expenses among the Borrowers pro rata according to their
respective Net Asset Values as at the date on which such fees and expenses are
paid or otherwise in compliance with law.
Section 6.2 INITIAL AND SUBSEQUENT LOANS. The obligation of the Banks to
make any Loan to a Borrower upon the occasion of each borrowing hereunder
(including the initial borrowing) is subject to the further conditions precedent
that both immediately prior to the making of such Loan and also after giving
effect thereto and to the intended use thereof:
(a) no Default shall have occurred and be continuing;
(b) the representations and warranties made by each Fund on behalf of
itself and each Borrower in SECTION 7 hereof shall be true and complete on and
as of the date of the making of such Loan with the same force and effect as if
made on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date as of such specific
date);
(c) the Banks shall be satisfied that the Loans and the use of proceeds
thereof in respect of each Borrower comply in all respects with Regulation U. To
the extent required by Regulation U, the Administrative Agent shall have
received a copy of either (i) FR Form U-1, duly executed and delivered by each
Fund on behalf of each Borrower and completed for delivery to each Bank, in form
acceptable to the Administrative Agent, or (ii)a current list of "margin stock"
(as defined in Regulation U) from each Borrower, in form acceptable to the
Administrative Agent and in compliance with Section 21.3(c)(2) of Regulation U;
and
(d) (i) Asset Coverage of at least 300% of any Borrower as provided by and
in accordance with the Investment Company Act (provided that "total assets," as
used in the Investment Company Act, shall not include any encumbered assets of a
Borrower) and (ii) borrowing limits in such Borrower's Prospectus arc not
exceeded.
Each notice of borrowing by a Fund on behalf of itself or a Borrower hereunder
shall constitute a certification by such Fund to the effect set forth in the
preceding sentence (both as of the date of such notice and. unless such Fund
otherwise notifies the Administrative Agent prior to the date of such borrowing,
as of the date of such borrowing).
SECTION 7. REPRESENTATIONS AND WARRANTIES. Each Fund, on behalf of itself and
each Borrower, hereby represents and warrants to the Administrative Agent and
the Banks that (it being agreed that each Fund represents and warrants only to
matters with respect to itself and each Borrower that is apart of such Fund, and
each Borrower represents only to matters with respect to itself):
Section 7.1 CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each Fund: (a) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization; (b) has all requisite corporate or
other power, and has all material governmental licenses, authorizations,
consents and approvals necessary to own its assets and carry on its business as
now being or as proposed to be conducted, (c) is qualified to do business and is
in good standing in all jurisdictions where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect; (d) has no
Subsidiaries; and (e) is in compliance of all laws, including, but not limited
to, the Investment Company Act and the Securities Act of 1933, as amended.
Section 7.2 INVESTMENT COMPANY.
------------------
(a) Each Fund is registered with the Commission under the Investment
Company Act as an open-end management investment company, and no order of
suspension or revocation of such registration has been issued or proceedings
therefor initiated or threatened by the Commission.
(b) Each Borrower is in substantial compliance with all investment
objectives. policies, restrictions and limitations set forth or incorporated by
reference in the Prospectus and applicable to such Borrower.
(c) The Investment Adviser is the primary investment adviser to each
Borrower and Fund and, to the best knowledge of each Fund, the Investment
Adviser is duly registered as an investment adviser under the Advisers Act.
Section 7.3 PERMISSION TO BORROW. Each Borrower is permitted to borrow
hereunder pursuant to the limits and restrictions set forth in its Prospectus.
Section 7.4 FINANCIAL CONDITION. For each Borrower, the statement of assets
and liabilities as of such Borrower's most recently ended fiscal year for which
annual reports have been prepared and the related statements of operations and
of changes in net assets for the fiscal year ended on such date, copies of which
financial statements, certified by the independent public accountants for each
Borrower, or the Fund acting on behalf of each such Borrower, as the case may
be, have heretofore been delivered to each Bank, fairly present, in all material
respects, the financial position of such Borrower as of such date and the
results of its operations for such period, in conformity with GAAP (as
consistently applied).
Section 7.5 LITIGATION. There arc no legal or arbitral proceedings, or any
proceedings by or before any governmental or regulatory authority or agency, now
pending or (to the knowledge of any Fund or any Borrower) threatened against
that Fund or Borrower (a) with respect to this Agreement and each of the Notes
or any of the transactions contemplated hereby or thereby, or (b) that, if
adversely determined could (either individually or in the aggregate) have a
Material Adverse Effect.
Section 7.6 NO DEFAULT. No Default or Event of Default has occurred and is
continuing.
Section 7.7 NO BREACH. None of the execution and delivery of this Agreement
and the Notes, the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent under, the charter or by-laws of any Fund,
or any applicable law or regulation, or any order, writ, injunction or decree of
any court or governmental authority or agency, or any material agreement or
instrument to which any Fund is a party or by which it or any of its or any
Borrower's Property is bound or to which it is subject, or constitute a default
under any such agreement or instrument.
Section 7.8 ACTION. Each Fund has all necessary corporate power, authority
and legal right to execute, deliver and perform its obligations under this
Agreement and the Notes and to borrow hereunder; the execution, delivery and
performance by each Fund of this Agreement and the Notes and the ability to
borrow hereunder have been duly authorized by all necessary corporate action on
its part (including, without limitation, any required shareholder approvals);
and this Agreement has been duly and validly executed and delivered by each Fund
and constitutes, and each of the Notes when executed and delivered for value
will constitute, its legal, valid and binding obligation, enforceable against
each Fund in accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar
laws of general applicability affecting the enforcement of creditors' rights and
(b) the application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 7.9 APPROVALS. No authorizations, approvals or consents of, and no
filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by each Fund of this Agreement or the Notes or for the legality,
validity or enforceability hereof or thereof.
Section 7.10 USE OF CREDIT. No part of the proceeds of any Loan hereunder
will be used in a manner that violates Regulation U.
Section 7.11 ERISA. No Fund has any ERISA Affiliates or has had any ERISA
Affiliates at any time. No Fund maintains, contributes to or participates in,
nor at any time has any Fund maintained, contributed to or participated in, any
Plan or Multiemployer Plan.
Section 7.12 TAXES. Each Fund and each Borrower have filed all Federal
income returns and all other material tax returns that are required to be flied
by them and have paid all taxes due pursuant to such returns or pursuant to any
assessment received by a Fund or any such Borrower. The charges, accruals and
reserves on the books of each Fund in respect of taxes and other governmental
charges are, in the opinion of each Fund, adequate. No Fund has given or been
requested to give a waiver of the statute of limitations relating to the payment
of any Federal, state, local and foreign taxes or other impositions.
Section 7.13 TRUE AND COMPLETE DISCLOSURE. No Prospectus, as of the date
thereof, contains any untrue statement of material fact or omits to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Since the date of each
such Prospectus, there has not been any change that would require a Fund to
supplement or amend its Prospectus.
Section 7.14 ACCURACY OF INFORMATION. All factual information heretofore or
contemporaneously furnished by or on behalf of each Fund and each Borrower in
writing to the Administrative Agent or any Bank for purposes of or in connection
with this Agreement or any transaction contemplated hereby (in each case, as
amended, superseded, supplemented or otherwise modified with the knowledge of
the Administrative Agent or such Bank) is, and all other such factual
information hereafter furnished by or on behalf of each Fund and each Borrower
to the Administrative Agent or any Bank (in each case, as amended, superseded,
supplemented or otherwise modified with the knowledge of the Administrative
Agent or such Bank) will be, true and accurate in every material respect on the
date as of which such information is dated or certified, and to the extent such
information was furnished to the Administrative Agent or such Bank heretofore or
contemporaneously, as of the date of execution and delivery of this Agreement by
the Administrative Agent or such Bank, and such information is not, or shall not
be, as the case may be, incomplete by omitting to state any material fact
necessary to make such information not misleading.
Section 7.15 INDEBTEDNESS. As of the date hereof, neither any Fund nor any
Borrower has any Indebtedness other than (a) current liabilities consisting of
expenses payable and payables for securities purchased and (b) obligations under
Financial Contracts.
Section 7.16 PROPERTY AND LIENS. No Lien exists upon any Property of any
Fund except for Liens permitted by SECTION 8.8 hereof.
Section 7.17 BLUE SKY REGISTRATIONS. There are in full force and effect
orders of effective securities registration for the securities of each Borrower
in each state in which such securities are sold or are offered for sale and
required to be so registered.
Section 7.18 FEDERAL REGULATIONS. If requested by any Bank or the
Administrative Agent from time to time, each of the Funds and each Borrower will
furnish to the Administrative Agent and each Bank a statement and current list
of the assets of each Borrower in conformity with the requirements of FR Form
U-1 referred to in said Regulation U. Other than the furnishing of such
statement and such list, no filing or other action is required under the
provision of Regulations T, U or X in connection with the execution and delivery
of the Agreement and the making of the Loans hereunder.
Section 7.19 APPORTIONMENT AMONG FUNDS. Borrowings of Loans by a Fund for
the benefit of any Borrower will be allocated by such Fund among the Borrowers
on a fair and equitable basis not in violation of applicable law and in
accordance with the procedures established prior to the date of this Agreement
by the board of directors of the Fund, as such procedures may be amended from
time to time.
Section 7.20 NO MATERIAL ADVERSE CHANGE. For each Borrower, since the date
of the statement of assets and liabilities for the most recently ended fiscal
year for which annual reports have been prepared for such Borrower, there has
been no development or event which has had or could reasonably be expected to
have a Material Adverse Effect with respect to such Borrower.
SECTION 8. COVENANTS OF THE FUNDS. Each Fund for itself and each Borrower for
itself hereby covenants and agrees with the Banks and the Administrative Agent
that, so long as any Commitment or Loan is outstanding to it or (in the case of
any Fund) any Borrower that is a part of such Fund and until payment in full of
all amounts payable by it or (in the case of any Fund) any Borrower that is a
part of such Fund hereunder (it being agreed that each Fund covenants only to
matters with respect to itself and each Borrower that is a part of such Fund,
and each Borrower covenants only to matters with respect to itself):
Section 8.1 FINANCIAL STATEMENTS. Each Fund or Borrower, as applicable,
shall deliver to the Administrative Agent (with copies for each Bank):
(a) as soon as available and in any event within 75 days after the end of
each fiscal year of such Borrower, a statement of assets and liabilities of that
Borrower as of the end of such fiscal year, a statement of operations for such
fiscal year, a statement of changes in net assets for such fiscal year and the
preceding fiscal year, a portfolio of investments as of the end of such fiscal
year and the per share and other data for such fiscal year prepared in
accordance with GAAP (as consistently applied) and all regulatory requirements,
and all presented in a manner acceptable to the Securities and Exchange
Commission or any successor or analogous Governmental Authority and acceptable
to PricewaterhouseCoopers LLP, Deloitte & Touche LLP, or any other
independent certified public accountants of recognized standing;
(b) as soon as available and in any event within 60 days after the close of
the first six-month period of each fiscal year of such Borrower, a statement of
assets and liabilities as of the end of such six-month period, a statement of
operations for such six-month period, a statement of changes in net assets for
such six-month period and a portfolio of investments as of the end of such
six-month period, all prepared in accordance with regulatory requirements and
all certified (subject to normal year-end adjustments) as to fairness of
presentation, GAAP (as consistently applied) and consistency by a Responsible
Officer, and
(c) as soon as available, but in any event not later than 10 days after the
end of each fiscal quarter of each Borrower, the net asset value sheet of such
Borrower as of the end such quarter, in the form and detail similar to those
customarily prepared by each of the Fund's management for internal use and
reasonably satisfactory to the Administrative Agent, certified by a Responsible
Officer as being fairly stated in all material respects; PROVIDED, HOWEVER, that
if any Borrower has Loans outstanding, such Borrower shall provide each Bank
with (i) such net asset value sheet described above in this SECTION 8.1 and (ii)
a certificate of a Responsible Officer showing in reasonable detail the
calculations supporting such Borrower's compliance with SECTION 6.2(D) hereof,
within three Business Days after the end of each calendar week so long as any
Loans to such Borrower remain outstanding;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
Section 8.2 CERTIFICATES; OTHER INFORMATION. Each Fund or Borrower, as
applicable, shall deliver to the Administrative Agent (with copies for each
Bank):
(a) concurrently with the delivery of the financial statements referred to
in SECTIONS 8.1(A), (B), and (C) hereto and the quarterly report in SECTION
8.2(C) hereof, a certificate of a Responsible Officer stating that (i) to the
best of such Responsible Officer's knowledge, such Borrower during such period
has observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and the Notes to be
observed, performed or satisfied by it, and (ii) no Default or Event of Default
has occurred and is continuing except as specified in such certificate;
(b) within five days after the same are sent, copies of all financial
statements and reports which each Borrower generally sends to its investors, and
within five Business Days after the same are filed, copies of all financial
statements and material reports which each Borrower may make to or file with,
the Securities and Exchange Commission or any successor or analogous
Governmental Authority;
(c) as soon as available, but in any event not later than 10 days after the
end of each fiscal quarter, a certificate of a Responsible Officer (i) stating
that the list of each Borrower's portfolio securities attached to such
certificate is true and correct and (ii) showing in reasonable detail the
calculations supporting such Borrower's compliance with SECTION 6.2(D) hereof;
and
(d) promptly, such additional financial and other information as any Bank
may from time to time reasonably request, including, but not limited to, copies
of all changes to the Prospectus and registration statement.
Section 8.3 NOTICES. Each Fund or Borrower, as the case may be, shall
promptly give notice to the Administrative Agent and each Bank of:
(a) the occurrence of any Default or Event of Default with respect to such
Borrower;
(b) any (i) default or event of default under any Contractual Obligation of
such Borrower or such Fund or (ii) litigation, investigation or proceeding which
may exist at any time between any Fund and/or any Borrower and any Governmental
Authority, which in either case, if not cured or if adversely determined, as the
case may be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting such Borrower in which the
amount reasonably determined to be at risk is $1,000,000 or more and not covered
by insurance or in which injunctive or similar relief is sought;
(d) any change in any of the parties to any Custody Agreement relating to
any Fund;
(e) any material change in such Borrower's Prospectus or registration
statement; and
(f) any development or event which could reasonably be expected to have a
Material Adverse Effect on any such Borrower.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action such Fund or such Borrower proposes to take with respect
thereto.
Section 8.4 EXISTENCE, ETC. Each Fund will:
(a) preserve and maintain its legal existence and all of its (and each
Borrower's) material rights, privileges, licenses and franchises;
(b) comply with the requirements of all applicable laws, rules, regulations
and orders of governmental or regulatory authorities (including, without
limitation, the Investment Company Act and all rules and regulations promulgated
thereunder, and Regulations U and X and other applicable regulations of the
Board of Governors of the Federal Reserve System) if failure to comply with such
requirements could reasonably be expected to have a Material Adverse Effect;
(c) pay and discharge, on its own behalf and on behalf of each Borrower,
all material taxes, assessments and governmental charges or levies imposed on
the income, profits or Property of it or of such Borrower prior to the date on
which penalties attach thereto, except for any such tax, assessment, charge or
levy the payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained;
(d) pay and discharge, on its own behalf and on the behalf of each
Borrower, at or before maturity or before they become delinquent, as the case
may be, all its obligations of whatever nature, except where (i) the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of such Borrower, as the case may be, or (ii) the lack of
timely payment thereof could not reasonably be expected to have a Material
Adverse Effect;
(e) preserve and maintain its status as a registered, open-end management
investment company under the Investment Company Act,
(f) maintain at all times its current primary custodians responsible for
the safekeeping of portfolio securities, unless the prior written consent of the
Banks has been obtained, PROVIDED, that such consent is not required (i) of any
Bank which is also such primary custodian, or (ii) for a Borrower to change its
primary custodian to a bank or trust company organized under the laws of the
United States or a political subdivision thereof having assets of at least
$10,000,000,000 and a long-term debt or deposit rating of at least A from
Standard & Poor's Ratings Group or A2 from Xxxxx'x Investor Services, Inc.;
(g) keep, and cause each of the Borrowers to keep, adequate records and
books of account, keep, and cause each of the Borrowers to keep, adequate
records and books which complete entries will be made in accordance with GAAP
and the Investment Company Act and regulations promulgated thereunder reflecting
all financial transactions of each Fund and each Borrower;
(h) cause each Borrower to comply in all material respects with all
investment objectives, policies, restrictions and limitations set forth or
incorporated by reference in the Prospectus and applicable to such Borrower; and
(i) permit representatives of (i) the Administrative Agent, upon its own
discretion or at the reasonable request of any Bank, and (ii) upon the
occurrence and during the continuance of an Event of Default, any Bank to visit
and inspect any of such Borrower's properties and examine and make abstracts
from any of its books and records during normal business hours and to discuss
the business, operations,, properties, and financial and other condition of such
Borrower with officers and employees of such Borrower and with its independent
certified public accountants; PROVIDED, that, unless a Default or an Event of
Default shall have occurred and be continuing, the Administrative Agent shall
provide the Borrowers with five Business Days' prior notice of such visit and
shall only conduct such visit once a year.
Section 8.5 USE OF PROCEEDS. A Fund will use the proceeds of the Loans made
hereunder for the benefit of any Borrower solely to finance temporarily the
repurchase or redemption of shares of such Borrower at the request of the
holders of such shares, pending the orderly sale of portfolio securities held by
such Borrower, in compliance with all applicable legal and regulatory
requirements, including, without limitation, Regulations U and X, the Securities
Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended,
and the respective rules and regulations promulgated thereunder provided that
neither the Administrative Agent nor any Bank shall have any responsibility as
to the use of any of such proceeds.
Section 8.6 INSURANCE. Each Fund will keep insured by financially sound and
reputable insurers all Property of character usually insured by investment
companies engaged in the same or similar business against loss or damage of the
kinds and in the amounts required to be maintained by the Funds pursuant to
Section 17(g) of the Investment Company Act and Rule 17g-1 promulgated
thereunder.
Section 8.7 PROHIBITION OF FUNDAMENTAL CHANGES. Each Fund will not and will
not permit any Borrower to:
(a) enter into any transaction of merger or consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution) (a "MERGER");
(b) acquire any business or Property from, or capital stock of, or be a
party to any acquisition of, any Person (an "ACQUISITION") except for purchases
of Property in the ordinary course of business and securities purchased for
account of the Borrowers and not in violation of the terms and conditions of
this Agreement (including, without limitation, SECTION 8.4(F) hereof);
(c) convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions (a "TRANSFER"), all or a substantial
part of its business or Property, whether now owned or hereafter acquired except
for assets and securities sold or disposed of in the ordinary course of
business, including purchase and sale transactions performed under rule 17a-7 of
the Investment Company Act;
(d) have any Subsidiaries;
(e) maintain, contribute to or participate in any Plan or Multiemployer
Plan or
(f) change or modify in any material respect any fundamental investment
objective, policy or investment restriction or limitation of such Borrower
described in its Prospectus.
Notwithstanding the foregoing clauses (a), (b) and (c) of this SECTION 8.7, a
Fund may consummate a Merger, an Acquisition or a Transfer with a Specified
Existing Fund Affiliate PROVIDED that:
(i) no Default shall have occurred and be continuing at the time of such
Merger, Acquisition or Transfer or would result therefrom,
(ii) in connection with such Merger, Acquisition or Transfer, such Fund
shall deliver to the Administrative Agent a certificate of a senior
officer of such Fund stating that the Asset Coverage of each Borrower
shall not be reduced as a result thereof,
(iii)the Merger. Acquisition or Transfer is with another Borrower and the
investment Adviser is the investment manager to the entity surviving
such Merger, Acquisition or Transfer, and
(iv) the Administrative Agent shall have received an opinion of counsel for
such Fund, satisfactory to the Administrative Agent in form and
substance, as to such Merger, Acquisition or Transfer being in
compliance with the terms of this Agreement.
Section 8.8 LIMITATIONS ON LIENS. No Fund will, nor will a Fund permit any
Borrower to, create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, except
(a) Liens imposed by any governmental authority for taxes, assessments or
charges not yet due or that are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on the
books of such Borrower in accordance with GAAP;
(b) Liens created pursuant to a Custody Agreement, and
(c) Liens securing indebtedness permitted under SECTION 8.9 hereof and any
other Liens created, incurred, assumed or suffered to exist in compliance with
the Prospectus of such Borrower which are not otherwise prohibited, and for
which the Administrative Agent has been given prior written notice.
Section 8.9 INDEBTEDNESS. A Fund will not, nor will it permit any Borrower
to, create, incur or suffer to exist any Indebtedness except (a) Indebtedness to
the Banks hereunder and (b) obligations under Financial Contracts.
Section 8.10 DIVIDEND PAYMENTS. A Fund will not, and will not permit any
Borrower to, declare or make any Dividend Payment at any time if, either before
or after giving effect thereto, (a) a Default shah have occurred and be
continuing (pROVIDED that, unless any amounts payable hereunder have been
declared due and payable pursuant to SECTION 9 hereof, nothing contained in this
clause (a) shall limit the ability of any Borrower to distribute each year all
of its net Investment income (including net realized capital gains) so that it
not be subject to tax (including corporate and/or excise taxes) under the Code)
or (b) such Dividend Payment would be in violation of the Investment Company
Act.
Section 8.11 ASSET COVERAGE; BORROWING LIMITS. A Fund will not permit (i)
the Asset Coverage for any Borrower to be less than 300% at any time, PROVIDED,
that "total assets," as used in the definition of "asset coverage" in the
Investment Company Act, shall not include any encumbered assets of such
Borrower, or (ii) any Borrower to violate the limits on borrowing as set forth
in such Borrower's Prospectus.
Section 8.12 LINES OF BUSINESS. No Fund will engage in any line or lines of
business activity other than that of an open-end management investment company.
Section 8.13 MODIFICATIONS OF CERTAIN DOCUMENTS. Unless as otherwise
required by law, without the prior consent of the Administrative Agent (with the
approval of the Majority Banks), such consent and approval not to be
unreasonably withheld, no Borrower will consent to any modification, supplement
or waiver of any of the provisions of (a) its Articles of Incorporation, (b) its
By-Laws or (c) its Custody Agreement.
SECTION 9. EVENTS OF DEFAULT.
-----------------
If one or more of the following events (herein called "EVENTS OF DEFAULT")
shall occur and be continuing:
(a) A Fund or Borrower shall (i) default in the payment when due (whether
at stated maturity or upon mandatory or optional prepayment) of any principal of
any Loan or (b) default in the payment when due of any interest on any Loan, any
fee or any other amount payable by it hereunder and such default shall have
continued unremedied for three or more days; or
(b) A Fund or Borrower shall default in the payment when due (after any
applicable grace period), under any Financial Contract, of any amount
aggregating 5% or more of such Borrower's or such Fund's net assets; or any
event specified in any Financial Contract shall occur if the effect of such
event is to cause, or (with the giving of any notice or the lapse of time or
both) to permit, termination or liquidation payment or payments aggregating 5%
or more of such Borrower's or such Fund's net assets to become due; or
(c) Any representation, warranty or certification made or deemed made
herein (or in any modification or supplement hereto) by a Borrower, or any
certificate furnished to any Bank or the Administrative Agent pursuant to the
provisions hereof, shall prove to have been false or misleading as of the time
made or furnished in any material respect; or
(d) A Fund or Borrower shall default in the performance of any of its
obligations under any of SECTIONS 8.3(A) and 8.7 through 8.13 hereof; or such
Fund or Borrower shall default in the performance of any of its other
obligations in this Agreement and such default shall continue unremedied for a
period of thirty or more days after notice thereof to such Fund or Borrower by
the Administrative Agent or any Bank (through the Administrative Agent); or
(e) A Fund or a Borrower shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(f) A Fund or a Borrower shall (i) apply for or consent to the appointment
of, or the taking of possession by, a receiver, custodian, trustee, examiner or
liquidator of itself or of all or a substantial part of its Property, (ii) make
a general assignment for the benefit of its creditors, (iii) commence a
voluntary case under the Bankruptcy Code, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization,
liquidation, dissolution, arrangement or winding-up, or composition or
readjustment of debts, (v) fall to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code or (vi) take any corporate action for
the purpose of effecting any of the foregoing; or
(g) A proceeding of law shall be commenced, without the application or
consent of a Fund or a Borrower, in any Court of competent jurisdiction, seeking
(i) its reorganization, liquidation, dissolution, arrangement or winding-up, or
the composition or readjustment of its debts, (ii) the appointment of a
receiver, custodian, trustee, examiner, liquidator or the like of such Borrower
or of all or any substantial part of its Property or (iii) similar relief in
respect of such Fund or Borrower under any law relating to bankruptcy,
insolvency, reorganization, winding up, or composition or adjustment of debts,
and such proceeding or case shall continue undismissed, or art order, judgment
or decree approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 60 or more days; or an order
for relief against such Fund or Borrower shall be entered in an involuntary case
under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in an amount in
excess of 5% or more of such Borrower's or such Fund's net assets shall be
rendered by one or more courts, administrative tribunals or other bodies having
jurisdiction against the Borrower or Fund and the same shall not be discharged
(or provision shall not be made for such discharge), or a stay of execution
thereof shall not be procured within 60 days from the date of entry thereof and
such Borrower or Fund shall not, within said period of 60 days, or such longer
period during which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal; or
(i) Except as expressly permitted by Section 8.7 hereof, any Person, or
related Persons constituting a "group" for purposes of Section 13(d) of the
Securities Exchange Act of 1934, as amended, (other than a Specified Existing
Fund Affiliate) shall have acquired beneficial ownership, directly or
indirectly, of more than 33% of the outstanding voting stock of a Fund or a
Borrower, or
(j) Any Person, or related Persons constituting a "group" for purposes of
Section 13(d) of the Securities Exchange Act of 1934, as amended, (other than a
Specified Existing Investment Adviser Affiliate) shall have acquired beneficial
ownership, directly or indirectly, of more than 33% of the outstanding voting
stock or other ownership interests of the Investment Adviser; or
(k) A Fund or a Borrower's registration under the Investment Company Act
shall lapse or be suspended (or proceedings for such purpose shall have been
instituted); or
(l) A Fund or a Borrower shall fall to comply with the Investment Company
Act in a manner which could be reasonably expected to have a Material Adverse
Effect; or
(m) A Borrower shall fail to comply with its investment policies and
restrictions as set forth in its Prospectus in a manner which could be
reasonably expected to have a Material Adverse Effect; or
(n) unless consented to by the Banks, the Investment Adviser or an
investment Adviser Affiliate shall cease to act as the sole investment adviser
to a Fund or a Borrower, or the Investment Adviser shall cease to be registered
as an investment adviser under the Advisers Act; or
(o) since the date of the statement of assets and liabilities for the most
recently ended fiscal year for which such annual reports have bean prepared for
a Borrower, there has been a development or event which has had or could
reasonably be expected to have a Material Adverse Effect with respect to such
Borrower;
THEREUPON: (i) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this SECTION 9 with respect to a Borrower, the
Administrative Agent may and, upon request of the Majority Banks, will, by
notice to such Borrower, terminate the Commitments and/or declare the principal
amount than outstanding of, and the accrued interest on, the Loans and all other
amounts payable by such Borrower hereunder and under the Notes to be forthwith
due and payable, whereupon such amounts shall be immediately due and payable
without presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by such Borrower; and (ii) in the case of the
occurrence of an Event of Default referred to in clause (f) or (g) of this
SECTION 9 with respect to a Borrower, the Commitments shall automatically be
terminated and the principal amount then outstanding of, and the accrued
interest on, the Loans and all other amounts payable by such Borrower hereunder
and under the Notes shall automatically become immediately due and payable
without presentment demand, protest or other formalities of any kind, all of
which are hereby expressly waived by such Borrower.
Notwithstanding any other provision herein to the contrary, Defaults and Events
of Default shall have the following results:
(i) a Default or Event of Default with respect to one Borrower shall not
constitute a Default or Event of Default to any other Borrower;
(ii) except as set forth in clause (iii) below, a Default or Event of
Default with respect to a Fund acting on behalf of one or more
Borrowers shall constitute a Default or Event of Default, as the case
may be, only to the Borrower or Borrowers implicated in, or affected
by, the act or omission causing such Default or Event of Default;
(iii)a Fund Default or Fund Event of Default with respect to a Fund acting
on behalf of one or more Borrowers shall constitute a Default or Event
of Default, as the case may be, to each Borrower issued by such Fund
for which such Fund Default or Fund Event of Default may in the
reasonable discretion of the Administrative Agreement be reasonably
expected to have a Material Adverse Effect on each such Borrower's
ability to perform its obligations under this Agreement and the Notes;
and
(iv) an Event of Default of the type described in paragraph (n) of this
SECTION 9 shall constitute an Event of Default to all Borrowers.
"FUND EVENT OF DEFAULT" shall mean an Event of Default with respect to a Fund
(A) of any of the types described in paragraphs (b), (f), (g), (h) or (k) of
this SECTION 9, or (B) arising from such Fund's failure to comply with the
covenants set forth in SECTIONS 8.3, 8.4 and 8.5 hereof. "FUND DEFAULT" shall
mean any of the covenants giving rise to Fund Events of Default, whether or any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
SECTION 10. THE ADMINISTRATIVE AGENT.
------------------------
Section 10.1 APPOINTMENT, POWERS AND IMMUNITIES. Each Bank hereby appoints
and authorizes the Administrative Agent to act as its agent hereunder with such
powers as are specifically delegated to the Administrative Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. The Administrative Agent (which term as used in this sentence and in
SECTION 10.5 and the first sentence of SECTION 10.6 hereof shall include
reference to its affiliates and its own and its affiliates' officers, directors,
employees and agents):
(a) shall have no duties or responsibilities except those expressly set
forth in this Agreement, and shall not by reason of this Agreement be a trustee
for any Bank;
(b) shall not be responsible to the Banks for any recitals, statements,
representations or warranties contained in this Agreement, or in any certificate
or other document referred to or provided for in, or received by any of them
under, this Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, any Note or any other document
referred to or provided for herein or for any failure by a Borrower or any other
Person to perform any of its obligations hereunder or thereunder;
(c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder;
(d) shall not be responsible for any action taken or omitted to be taken by
it hereunder or under any other document or instrument referred to or provided
for herein or in connection herewith, except for its own gross negligence or
willful misconduct, and
(e) shall not 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 documents related to this
Agreement, or to inspect the properties, books or records of any Fund or any
Borrower.
The Administrative Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. The Administrative Agent may
deem and treat the payee of a Note as the holder thereof for all purposes hereof
unless and until a notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent, together with the consent of the Funds to
such assignment or transfer (to the extent required by SECTION 11.6(B) hereof).
Section 10.2 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telegram or
cable) reasonably believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. As to any matters not expressly provided
for by this Agreement, the Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder in accordance with
instructions given by the Majority Banks, and such instructions of the Majority
Banks and any action taken or failure to act pursuant thereto shall be binding
on all of the Banks.
Section 10.3 DEFAULTS. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default unless the Administrative
Agent has received notice from a Bank or a Borrower specifying such Default and
stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Banks. The
Administrative Agent shall (subject to SECTION 10.7 hereof) take such action
with respect to such Default as shall be directed by the Majority Banks,
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative 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 in the best interest of the Banks except to
the extent that this Agreement expressly requires that such action be taken, or
not be taken, only with the consent or upon the authorization of the Majority
Banks or all of the Banks.
Section 10.4 RIGHTS AS A BANK. With respect to its Commitment and the Loans
made by it, JPMorgan (and any successor acting as Administrative Agent) in its
capacity as a Bank hereunder shall have the same rights and powers hereunder as
any other Bank and may exercise the same as though it were not acting as the
Administrative Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include the Administrative Agent in its individual
capacity. JPMorgan (and any successor acting as Administrative Agent) and its
affiliates may (without having to account therefor to any Bank) accept deposits
from, lend money to, make investments in and generally engage in any kind of
banking, trust or other business with the Funds (and any of their affiliates) as
if it were not acting as the Administrative Agent, and JPMorgan (and any such
successor) and its affiliates may accept fees and other consideration from the
Funds for services in connection with this Agreement or otherwise without having
to account for the same to the Banks.
Section 10.5 INDEMNIFICATION. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed under SECTION 11.3 hereof,
but without limiting the obligations of the Funds under said SECTION 11.3)
ratably in accordance with the aggregate principal amount of the Loans held by
the Bank, (or, if no Loans arc at the time outstanding, ratably in accordance
with their respective Commitments), for any and all liabilities, obligations,
losses, damages, penalties, action,, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against the Administrative Agent arising out of or by reason of
any investigation in or in any way relating to or arising out of this Agreement
or any other documents contemplated by or referred to herein or the transactions
contemplated hereby or the enforcement of any of the terms hereof or of any such
other documents, PROVIDED that no Bank shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of the
party to be indemnified.
Section 10.6 NON-RELIANCE ON ADMINISTRATIVE AGENTS AND OTHER BANKS. Each
Bank expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Funds or
Borrowers, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Bank. Each Bank agrees that it has, independently
and without reliance on the Administrative Agent or any other Bank. and based on
such documents and information as it has deemed appropriate, made its own credit
analysis of the Borrowers and decision to enter into this Agreement and that it
will, independently and without reliance upon the Administrative Agent or any
other Bank. and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement. The Administrative Agent shall
not be required to keep itself informed as to the performance or observance by
the Borrowers of this Agreement or any other document referred to or provided
for herein or to inspect the Properties or books of the Borrowers. Except for
notices, reports and other documents and information expressly required to be
furnished to the Banks by the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial condition or
business of the Borrowers (or any of their affiliates) that may come into the
possession of the Administrative Agent or any of its affiliates.
Section 10.7 FAILURE TO ACT. Except for action expressly required of the
Administrative Agent hereunder, the Administrative Agent shall in all cases be
fully justified in failing or refusing to act hereunder unless it shall receive
further assurances to its satisfaction from the Banks of their indemnification
obligations under SECTION 10.5 hereof against any and all liability and expense
that may be incurred by it by reason of taking or continuing to take any such
action.
Section 10.8 RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT.
----------------------------------------------
Subject to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Banks (and the Funds if no Event of Default has occurred and is
continuing), and the Administrative Agent may be removed at any time with or
without cause by the Majority Banks. Upon any such resignation or removal, the
Majority Banks shall have the right to appoint a successor Administrative Agent
(with the consent of the Funds if no Event of Default has occurred and is
continuing), which consent shall not be unreasonably withheld or delayed. If no
successor Administrative Agent shall have been so appointed by the Majority
Banks and shall have accepted such appointment within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Majority Banks
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Banks and (with the consent of the Funds if no Event
of Default has occurred and is continuing and which consent shall not be
unreasonably withheld or delayed), appoint a successor Administrative Agent,
that shall be a bank that has an office in New York, New York with a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent, the provisions
of this SECTION 10 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Administrative Agent.
SECTION 11. MISCELLANEOUS.
-------------
Section 11.1 WAIVER. No failure on the part of the Administrative Agent or
any Bank to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement or any Note shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
Section 11.2 NOTICES. Alt notices, requests and other communications
provided for herein (including, without limitation, any modifications of; or
waivers, requests or Consents under, this Agreement) shall be given or made in
writing (including, without limitation, by telecopy) delivered to the intended
recipient at the "Address for Notices" specified below its name on the signature
pages hereof; or, as to any parry, at such other address as shall be designated
by such party in a notice to each other party. Except as otherwise provided in
this Agreement, all such communication shall be deemed to have been duly given
when transmitted by telecopier or personally delivered or. in the case of a
mailed notice, upon receipt, in each case given or addressed as aforesaid.
Section 11.3 EXPENSES, ETC.
-------------
(a) Each Borrower agrees severally (pro rata based on their respective Net
Asset Values) (i) to reimburse the Administrative Agent for its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and any Notes and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (ii)
to reimburse each Bank and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement with respect to such Borrower, the Notes, and any
such other documents, including, without limitation, the fees and disbursements
of counsel to each Bank and of counsel to the Administrative Agent, (iii) to
indemnify and hold each Bank and the Administrative Agent harmless from any and
all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, any Notes, and any such other
documents with respect to such Borrower, and (iv) to indemnify and hold each
Bank and the Administrative Agent (and their respective affiliates, directors,
officers, agents and employees (collectively with the Administrative Agent and
the Banks, the "Indemnified Parties")) harmless from and against any and alt
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, out-of-pocket expenses or disbursements of any kind or nature
whatsoever arising from or in connection with the execution, delivery,
enforcement, performance and administration of this Agreement, any Notes, and
any such other documents (all the foregoing in this clause (iv), collectively,
the "indemnified liabilities"), PROVIDED, that each Borrower shall have no
obligation hereunder to the Administrative Agent or any Bank with respect to the
indemnified liabilities arising from (A) the gross negligence or willful
misconduct of the Administrative Agent or any such Bank, as the case may be, (B)
disputes arising solely between or among the Banks or solely between any Bank
and the Administrative Agent, (C) the Administrative Agent or any Bank's failure
to comply with any requirement imposed by applicable law, unless such failure is
attributable to a breach by a Borrower of any representation, warranty, or
covenant under this Agreement, or (D) any such indemnified liabilities that
relate to or arise from litigation commenced by any Borrower against the Banks
or the Administrative Agent which seeks enforcement of any of the rights of any
Borrower hereunder or under any Note and is determined adversely to the Banks or
the Administrative Agent in a final, non-appealable judgment.
(b) Notwithstanding any other provision in this Agreement to the contrary,
to the extent any obligation to reimburse or indemnify any Indemnified Party
that arises pursuant to SECTION 11.3(A) hereto is not attributable to any
particular Borrower, then such reimbursement or indemnification shall be made by
each Borrower (pro rata based on their respective Net Asset Values). To the
extent any such obligation to reimburse or indemnify any Indemnified Party is
attributable to one or more Borrowers, then such reimbursement or
indemnification shall be made ratably by each such Borrower.
Section 11.4 AMENDMENTS, ETC. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be modified or supplemented
only by an instrument in writing signed by the Funds and the Majority Banks, or
by the Funds and the Administrative Agent acting with the consent of the
Majority Banks, and any provision of this Agreement may be waived by the
Majority Banks or by the Administrative Agent acting with the consent of the
Majority Banks; PROVIDED, that: (a) no modification, supplement or waiver shall,
unless by an instrument signed by all of the Banks or by the Administrative
Agent acting with the consent of all the Banks: (i) increase, or extend the term
of the Commitments, or extend the time or waive any requirement for the
reduction or termination of the Commitments, (ii) extend the date fixed for the
payment of principal of or interest on any Loan or any fee hereunder, (iii)
reduce the amount of any such payment of principal, (iv) reduce the rate at
which interest is payable thereon or any fee is payable hereunder, (v) alter the
rights or obligations of a Borrower to prepay Loans, (vi) alter the manner in
which payments or prepayments of principal interest or other amounts hereunder
shall be applied as between the Banks, (vii) alter the required Asset Coverage
as set forth in SECTION 6.2(D) hereof, (viii) alter the terms of this SECTION
11.4, (ix) amend SCHEDULE I pursuant to SECTION 2.11(A) hereof, or (x) modify
the definition of the term "Majority Banks" or modify in any other manner the
number or percentage of the Banks required to make any determinations or waive
any rights hereunder or to modify any provision hereof, and (b) any modification
or supplement of SECTION 10 hereof, or of any of the rights or duties of the
Administrative Agent hereunder, shall require the consent of the Administrative
Agent.
Section 11.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
Section 11.6 ASSIGNMENTS AND PARTICIPATIONS.
------------------------------
(a) The Funds may not assign any of their rights or obligations hereunder
or under the Notes without the prior consent of all of the Banks and the
Administrative Agent.
(b) Each Bank may assign any of its Loans, its Notes, and its Commitment
(but only with the consent of the Administrative Agent and, if no Default exists
and is continuing, the Funds) to an Eligible Lender; provided that
(i) no such consent by the Funds or the Administrative Agent
shall be required in the case of any assignment to any Affiliate or to another
Bank;
(ii) except to the extent the Funds and the Administrative Agent
shall otherwise consent, any such partial assignment (other than to another
Bank) shall be in an amount at least equal to $2,000,000,
(iii) each such assignment by a Bank of its Loans, Notes or
Commitment shall be made in such manner so that the same portion of its Loans,
Notes and Commitment is assigned to the respective assignee; and
(iv) each such assignment shall be effected pursuant to an
Assignment and Acceptance in substantially the form of EXHIBIT 11.6(B) hereto
and the assignor and assignee shall deliver to the Funds and the Administrative
Agent a fully executed copy thereof.
Upon execution and delivery by the assignor and the assignee to the Funds and
the Administrative Agent of such Assignment and Acceptance, and upon consent
thereto by the Funds and the Administrative Agent to the extent required above
and acceptance thereof by the Administrative Agent, the assignee shall have, to
the extent of such assignment (unless otherwise consented to by the Funds and
the Administrative Agent), the obligations, rights and benefits of a Bank
hereunder holding the Commitment and Loans (or portions thereof) assigned to it
and specified in such Assignment and Acceptance (in addition to the Commitment
and Loans, if any, theretofore held by such assignee) and the assigning Bank
shall, to the extent of such assignment, be released from the Commitment (or
portion thereof) so assigned. Upon each such assignment the assigning or
assignee Bank shall pay the Administrative Agent an assignment fee of $3,000.
(c) A Bank may sell or agree to sell to one or more other Eligible Lenders
(each a "PARTICIPANT") a participation in all or any part of any Loans held by
it, or in its Commitment, PROVIDED that such Participant shall not have any
rights or obligations under this Agreement or any Note (the Participant's rights
against such Bank in respect of such participation to be solely those set forth
in the agreements executed by such Bank in favor of the Participant). All
amounts payable by the Funds to any Bank under SECTION 5 hereof in respect of
Loans held by it, and its Commitment, shall be determined as if such Bank had
not sold or agreed to sell any participations in such Loans and Commitment, and
as if such Bank were funding each of such Loan and Commitment in the same way
that it is funding the portion of such Loan and Commitment in which no
participations have been sold. In no event shall a Bank that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder except that such Bank may agree with the Participant that it
will not, without the consent of the Participant, agree to (i) increase or
extend the term of such Bank's Commitment, (ii) extend the date fixed for the
payment of principal of or interest on the related Loan or Loans or any portion
of any fee hereunder payable to the Participant, (iii) reduce the amount of any
such payment of principal, (iv) reduce the rate at which interest is payable
thereon, or any fee hereunder payable to the Participant, to a level below the
rate at which the Participant is entitled to receive such interest or fee or (v)
consent to any modification, supplement or waiver hereof to the extent that the
same, under SECTION 11.4 hereof, requires the consent of each Bank.
(d) In addition to the assignments and participations permitted under the
foregoing provisions of this SECTION 11.6, any Bank may (without notice to the
Funds, the Administrative Agent or any other Bank and without payment of any
fee) (i) assign and pledge all or any portion of its Loans and its Note to any
Federal Reserve Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank and (ii) assign all or
any portion of its rights under this Agreement and its Loans and its Note to an
affiliate. No such assignment shall release the assigning Bank from its
obligations hereunder.
(e) A Bank may furnish any information concerning any Borrower in the
possession of such Bank from time to time to assignees and participants
(including prospective assignees and participants), subject however, to the
provisions of SECTION 11.12(B) hereof.
Section 11.7 SURVIVAL. The obligations of the Funds under SECTION 11.3
hereof, and the obligations of the Banks under SECTION 10.5 hereof, shall
survive the repayment of the Loans and the termination of the Commitments
(including, with respect to any Bank that does not agree to the extension of the
Commitment Termination Date in accordance with SECTION 2.10 hereof, the
repayment of the Loans made by such Bank and the termination of the Commitment
of such Bank on the Commitment Termination in effect before giving effect to
such extension) and, in the case of any Bank that may assign any interest in its
Commitment or Loans hereunder, shall survive the making of such assignment,
notwithstanding that such. assigning Bank may cease to be a "Bank" hereunder. in
addition, each representation and warranty made, or deemed to be made by a
notice of any Loan, herein or pursuant hereto, shall survive the making of such
representation and warranty, and no Bank shall be deemed to have waived, by
reason of making any Loan, any Default that may arise by reason of such
representation or warranty proving to have been false or misleading,
notwithstanding that such Bank or the Administrative Agent may have had notice
or knowledge or reason to believe that such representation or warranty was false
or misleading at the time such Loan was made.
Section 11.8 CAPTION. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
Section 11.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 11.10 GOVERNING LAW; SUBMISSION TO JURISDICTION. This Agreement and
the Notes shall be governed by, and construed in accordance with, the law of the
State of New York. Each Fund hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and of
the Supreme Court of the State of New York sitting in New York County (including
its Appellate Division) and of any other appellate court in the State of New
York, for the purposes of all legal proceedings arising out of or relating to
this Agreement or the transactions contemplated hereby. Each Fund hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum. Further, each
Fund hereby agrees that service of process in any such legal proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Fund or such
Borrower at its address set forth on the signature page hereto or at such other
address of which the Administrative Agent shall have been notified pursuant
hereto.
Section 11.11 WAIVER OF JURY TRIAL. EACH OF THE FUNDS, THE ADMINISTRATIVE
AGENT AND THE BA.NKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 11.12 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
------------------------------------------------------------
(a) Each Fund and each Borrower acknowledge that each of the Administrative
Agent and each Bank and their respective affiliates (collectively, the "Bank
Parties") may be providing debt financing, equity capital or other services
(including financial advisory services) to other companies in respect of which
the Funds and/or Borrowers may have conflicting interests regarding the
transactions described herein and otherwise. The Bank Parties will not use
confidential information obtained from the Funds and/or Borrowers by virtue of
the transactions contemplated by this Agreement or their other relationships
with such Funds and/or Borrowers in connection with the performance by each of
the Bank Parties of services for other companies, and none of the Bank Parties
will furnish any such confidential information to other companies. Each Fund and
each Borrower also acknowledge that no Bank Party has any obligation to use in
connection with the transactions contemplated by this Agreement, or to furnish
to any fund or any Borrower, confidential information obtained from other
companies.
(b) Each Fund and each Borrower further acknowledges that from time to time
financial advisory, investment banking and other services may be offered or
provided to the Funds (in connection with this Agreement or otherwise) by any
Bank Parties and each Borrower and Fund hereby authorizes such Bank Parties to
share any information delivered to such Bank Parties by the Borrowers of the
Funds pursuant to this Agreement, it being understood that such Bank Party
receiving such information shall be bound by the provisions of paragraph (c)
below as if it were a Bank hereunder. Such authorization shall survive the
repayment of the Loans and the termination of the Commitments.
(c) Each Bank and the Administrative Agent agrees (on behalf of itself and
each of its affiliates, directors, officers, members, employees and
representatives) to use reasonable precautions to keep confidential in
accordance with its customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Funds pursuant to this Agreement
that is identified by the Funds as being confidential at the time the same is
delivered to the Banks and the Administrative Agent, provided that nothing
herein shall limit the disclosure of any such information (i) if such
information is when so supplied, or thereafter shall have become, public (other
than through a violation of this SECTION 11.12, (ii) to the extent required by
statute, rule, regulation or judicial process, (iii) to counsel for any of the
Banks or the Administrative Agent, (iv) to bank examiners (or any other
regulatory authority having jurisdiction over any Bank or the Administrative
Agent), or to auditors or accountants, (v) to the Administrative Agent or any
other Bank (or to X.X. Xxxxxx Securities Inc.), (vi) in connection with any
litigation to which any one or more of the Banks or the Administrative Agent is
a party, or in connection with the enforcement of rights or remedies hereunder,
(vii) to a subsidiary or affiliate of such Bank as provided in paragraph (a)
above or (viii) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or prospective assignee or
participant) agrees to be bound by the provisions of this SECTION 11.12(C),
which agreement may be included as part of the respective assignment or
participation agreement pursuant to which such assignee or participant acquires
an interest in the Loans hereunder); PROVIDED further, that (x) unless
specifically prohibited by applicable law or court order, each Bank and the
Administrative Agent shall, prior to the disclosure thereof, notify the Funds of
any request for disclosure of any such information (A) by any governmental
agency or representative thereof (other than any such request in connection with
an examination of the financial condition of such Bank by such governmental
agency) or (B) pursuant to legal process and (y) in no event shall any Bank or
the Administrative Agent be obligated or required to return any materials
furnished by the Funds. The obligations of each Bank under this SECTION 11.12
shall supersede and replace the obligations of such Bank under any
confidentiality letter in respect of this financing signed and delivered by such
Bank to the Funds prior to the date hereof; in addition, the obligations of any
assignee that has executed a Confidentiality Agreement in the form of EXHIBIT
11.12(C) hereto shall be superseded by this SECTION 11.12 upon the date upon
which such assignee becomes a Bank hereunder pursuant to SECTION 11.6(B) hereof.
(d) Notwithstanding anything to the contrary, any Lender (and any employee,
representative or other agent of such Lender) may disclose to any and all
persons, without limitation of any kind, such Lender's U.S. federal income tax
treatment and the U.S. federal income tax structure of the transactions
contemplated hereby relating to such Lender and all materials of any kind
(including opinions or other tax analyses) that are provided to it relating to
such tax treatment and tax structure. However, no disclosure of any information
relating to such tax treatment or tax structure may be made to the extent
nondisclosure is reasonably necessary in order to comply with applicable
securities laws.
Section 11.13 LIMITED RECOURSE. Anything in this Agreement to the contrary
notwithstanding, it is understood and agreed that the sole recourse of the
Administrative Agent or any Bank in respect of the obligations of any Borrower
with respect to (a) any Loan made to such Borrower (including, without
limitation, the obligations of such Borrower to pay the principal of, interest
on and other amounts in respect of such Loan) and (b) the portion of the
commitment fee and any amount payable pursuant to SECTIONS 7 and 11.3 hereof
allocated to such Borrower shall be limited to the assets of such Borrower and
that neither the Administrative Agent nor any Bank shall have any right to look
to any other Borrower or the assets thereof for the satisfaction of such
obligations.
Section 11.14 USA PATRIOT ACT NOTICE. Each Bank and the Administrative
Agent (for itself and not on behalf of any Bank) hereby notifies the Borrowers
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56) (the "ACT"), it is required to obtain, verify, and record information
that identifies the Borrowers, which information includes the names and
addresses of the Borrowers and other information that will allow such Bank or
Administrative Agent, as applicable, to identify the Borrowers in accordance
with the Act. Each Borrower hereby agrees to cooperate with each Bank to provide
such information promptly following a request therefor from such Bank.
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be duly executed by their respective authorized
officers as of the day and year first written above.
JPMORGAN CHASE BANK,
as Administrative Agent
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
AMERICAN CENTURY FUNDS
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE
DECEMBER 2003
AMERICAN CENTURY MUTUAL FUNDS, INC.,
on behalf of
Balanced Fund
Giftrust Fund
Growth Fund
Heritage Fund
New Opportunities Fund
New Opportunities Fund II
Select Fund
Ultra Fund
Capital Value Fund
Veedot Fund
Vista Fund
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY WORLD MUTUAL FUNDS, INC.,
on behalf of
International Growth Fund
International Discovery Fund
International Opportunities Fund
Emerging Markets Fund
Global Growth Fund
Life Sciences Fund
Technology Fund
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY CAPITAL PORTFOLIOS, INC.
on behalf of
Value Fund
Equity Income Fund
Real Estate Fund
Small Cap Value Fund
Equity Index Fund
Large Company Value Fund
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY STRATEGIC ASSET ALLOCATIONS, INC.
on behalf of
Strategic Allocation: Conservative Fund
Strategic Allocation: Moderate Fund
Strategic Allocation: Aggressive Fund
EmVee Fund
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY VARIABLE PORTFOLIOS, INC.
on behalf of
VP Balanced Fund
VP Capital Appreciation Fund
VP Value Fund
VP International Fund
VP Income & Growth Fund
VP Ultra Fund
VP Vista Fund
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY TAX-FREE AND MUNICIPAL FUNDS,
on behalf of
California Intermediate-Term Tax-Free Fund
California Long-Term Tax-Free Fund
California High-Yield Municipal Fund
California Limited-Term Tax-Free Fund
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY MUNICIPAL TRUST
on behalf of
Tax-Free Bond Fund
Florida Municipal Bond Fund
Arizona Municipal Bond Fund
High-Yield Municipal Fund
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY TARGET MATURITIES TRUST on behalf of
Target 2005 Fund
Target 2010 Fund
Target 2015 Fund
Target 2020 Fund
Target 2025 Fund
Target 2030 Fund
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY GOVERNMENT INCOME TRUST,
on behalf of
Xxxxxx Xxx Fund
Short-Term Government Fund
Government Bond Fund
Inflation-Adjusted Bond Fund
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY QUANTITATIVE EQUITY FUNDS
on behalf of
Global Gold Fund
Income & Growth Fund
Equity Growth Fund
Utilities Fund
Small Company Fund
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY INVESTMENT TRUST
on behalf of
Diversified Bond Fund
High-Yield Fund
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY INTERNATIONAL BOND FUNDS
on behalf of
International Bond Fund
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY VARIABLE PORTFOLIOS II, INC.,
on behalf of
VP Inflation Protection Fund
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Treasurer
AMERICAN CENTURY FUNDS
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE
DECEMBER 2003
NATIONAL AUSTRALIA BANK LIMITED
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
By:
----------------------------------------
Name:
Title:
AMERICAN CENTURY FUNDS
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE
DECEMBER 0000
XXXX XX XXXXXXX, N.A.
By: /s/ E. Xxx Xxxxxxxxx
----------------------------------------
Name: E. Xxx Xxxxxxxxx
Title: Managing Director
AMERICAN CENTURY FUNDS
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE
DECEMBER 2003
CREDIT LYONNAIS, NEW YORK BRANCH
By: /s/ Xxxxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Senior Vice President
By:
----------------------------------------
Name:
Title:
AMERICAN CENTURY FUNDS
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE
DECEMBER 2003
DEUTSCHE BANK AG NEW YORK BRANCH
By: Xxxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
AMERICAN CENTURY FUNDS
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE
DECEMBER 2003
UMB BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
AMERICAN CENTURY FUNDS
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE
DECEMBER 0000
XXXXXX XX, XXX XXXX BRANCH
By: /s/ Xxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
AMERICAN CENTURY FUNDS
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE
DECEMBER 0000
XXXXX XXXXXX BANK AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
AMERICAN CENTURY FUNDS
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE
DECEMBER 2003
ROYAL BANK OF SCOTLAND Plc
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
AMERICAN CENTURY FUNDS
AMENDED AND RESTATED CREDIT AGREEMENT
SIGNATURE PAGE
DECEMBER 2003
HSBC BANK USA
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: First Vice President
By:
---------------------------------------
Name:
Title:
SCHEDULE I
BORROWERS & ALLOCATIONS
-----------------------
PRO RATA
FUND ALLOCATION
--------------------------------------------------------------------------------
AMERICAN CENTURY MUTUAL FUNDS, INC.
BALANCED FUND 0.82
GIFTRUST FUND 1.95
GROWTH FUND 6.95
HERITAGE FUND 1.82
NEW OPPORTUNITIES FUND 0.70
NEW OPPORTUNITIES II FUND 0.08
SELECT FUND 5.66
CAPITAL VALUE FUND 0.16
ULTRA FUND 30.94
VEEDOT FUND 0.33
VISTA FUND 2.86
AMERICAN CENTURY WORLD MUTUAL FUNDS, INC.
EMERGING MARKETS FUND 0.39
GLOBAL GROWTH FUND 0.57
INTERNATIONAL DISCOVERY FUND 2.60
INTERNATIONAL GROWTH FUND 6.78
INTERNATIONAL OPPORTUNITIES FUND 0.18
LIFE SCIENCES FUND 0.23
TECHNOLOGY FUND 0.44
AMERICAN CENTURY CAPITAL PORTFOLIOS, INC.
EQUITY INCOME FUND 3.53
EQUITY INDEX FUND 1.16
LARGE COMPANY VALUE FUND 0.54
REAL ESTATE FUND 0.51
SMALL CAP VALUE FUND 1.96
VALUE FUND 3.46
AMERICAN CENTURY STRATEGIC ASSET ALLOCATIONS, INC.
STRATEGIC ALLOCATION - AGGRESSIVE FUND 0.83
STRATEGIC ALLOCATION - CONSERVATIVE FUND 0.43
STRATEGIC ALLOCATION - MODERATE FUND 1.59
EMVEE FUND 0.00
AMERICAN CENTURY VARIABLE PORTFOLIOS, INC.
VP BALANCED FUND 0.29
VP CAPITAL APPRECIATION FUND 0.38
VP INCOME & GROWTH FUND 1.11
VP INTERNATIONAL FUND 1.34
VP ULTRA FUND 0.11
VP VALUE FUND 2.80
VP VISTA FUND 0.00
AMERICAN CENTURY TAX-FREE AND MUNICIPAL FUNDS
PRO RATA
FUND ALLOCATION
--------------------------------------------------------------------------------
CALIFORNIA HIGH-YIELD MUNICIPAL FUND 0.29
CALIFORNIA INTERMEDIATE-TERM TAX-FREE FUND 0.37
CALIFORNIA LIMITED-TERM TAX-FREE FUND 0.19
CALIFORNIA LONG-TERM TAX-FREE FUND 0.49
AMERICAN CENTURY MUNICIPAL TRUST
ARIZONA MUNICIPAL BOND FUND 0.05
FLORIDA MUNICIPAL BOND FUND 0.05
HIGH-YIELD MUNICIPAL FUND 0.05
TAX-FREE BOND FUND 0.05
AMERICAN CENTURY TARGET MATURITIES TRUST
TARGET 2005 FUND 0.20
TARGET 2010 FUND 0.13
TARGET 2015 FUND 0.08
TARGET 2020 FUND 0.09
TARGET 2025 FUND 0.08
TARGET 2030 FUND 0.01
AMERICAN CENTURY GOVERNMENT INCOME TRUST
XXXXXX MAE FUND 1.49
GOVERNMENT BOND FUND 0.29
INFLATION-ADJUSTED BOND FUND 0.39
SHORT-TERM GOVERNMENT FUND 0.58
AMERICAN CENTURY QUANTITATIVE EQUITY FUNDS
EQUITY GROWTH FUND 1.84
GLOBAL GOLD FUND 0.98
INCOME & GROWTH FUND 6.55
SMALL COMPANY FUND 0.68
UTILITIES FUND 0.19
AMERICAN CENTURY INVESTMENT TRUST
DIVERSIFIED BOND FUND 0.39
HIGH-YIELD FUND 0.06
AMERICAN CENTURY INTERNATIONAL BOND FUNDS
INTERNATIONAL BOND FUND 0.50
AMERICAN CENTURY VARIABLE PORTFOLIOS II, INC.
VP INFLATION PROTECTION FUND 0.03
TOTAL 100.00%
SCHEDULE II
COMMITMENTS, ADDRESSES, ETC.
----------------------------
NAME AND ADDRESS OF BANK COMMITMENT
------------------------ ----------
JPMORGAN CHASE $0
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
XXXXXXXX.XXXXXX@XXXXXXXX.XXX
----------------------------
CREDIT LYONNAIS, NEW YORK BRANCH $95,000,000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
XXXXX@XXXXXXXXXX.XXX
--------------------
DEUTSCHE BANK XXXX XXXXX $75,000,000
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
UMB BANK, N.A. $20,000,000
0000 Xxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
XXXXX.XXXXXXXX@XXX.XXX
----------------------
WESTLB AG, NEW YORK BRANCH $50,000,000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Law
Telephone: (000) 000-0000
Fax: (000) 000-0000
XXXXXXX_XXX@XXXXXX.XXX
----------------------
STATE STREET BANK AND TRUST COMPANY $75,000,000
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
XXXXXXXXX@XXXXXXXXXXX.XXX
-------------------------
Bank of America, N.A. $95,000,000
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx X'Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: XXXX.XXXXXX@XXXXXXXXXXXXX.XXX
ROYAL BANK OF SCOTLAND Plc $95,000,000
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx XxXxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
xxxxx.xxxxxx@xxxx.xxx
NATIONAL AUSTRALIA BANK LIMITED $95,000,000
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
E-mail: XXXXXXX.XXXXXX@XX.XXXXXXXX.XXX
HSBC BANK USA $50,000,000
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telephone:
Facsimile:
E-mail:
------------
TOTAL $650,000,000
SCHEDULE III
CUSTODY AGREEMENTS
------------------
1. Global Custody Agreement between the Funds and The Chase Manhattan Bank,
dated August 9, 1996.
a. Amendment to Global Custody Agreement with The Chase Manhattan Bank,
Dated December 9, 2000.
2. Supplemental Agreement by and between American Century International
Discovery Fund, American Century Emerging Markets Fund and American Century
Global Growth Fund and The Chase Manhattan Bank, dated July 30, 1999.
3. Supplemental Agreement by and between American Century Strategic Allocation
Aggressive Fund, American Century Strategic Allocation Moderate Fund,
American Century Global Growth Fund and American Century International
Growth Fund and The Chase Manhattan Bank, dated February 1, 2000.
SCHEDULE IV
DISTRIBUTION AGREEMENTS
-----------------------
1. Amended and Restated Distribution Agreement between American Century
Investment Services, Inc. and the Funds dated September 3, 2002. This
agreement supersedes the agreement dated March 13, 2000. The purpose of
this amendment was to add load funds, add Large Company Growth Fund, fixed
income fund mergers and name change of Large Cap Value.
a. Amendment No. 1 dated 12-31-02 to add VP Inflation Protection Fund, VP
Large
b. Amendment No. 2 dated 8-29-03 to change name for Tax-Managed Value and
Small Cap Quant, remove VP Prime, add R shares and add EmVee Fund .
MASTER DISTRIBUTION AND SHAREHOLDER SERVICES PLANS
--------------------------------------------------
A. ADVISOR CLASS
1. KC plan dated 9-3-96.
a. Amendment No. 1 dated 6-13-97 to change fund/issuer names, add
Real Estate; change Retail Class to Investor Class.
b. Amendment No. 2 dated 9-30-97 to add High-Yield.
c. Amendment No. 3 dated 6-30-98 to add Small Cap Value.
d. Amendment No. 4 dated 11-13-98 to add Global Growth.
e. Amendment No. 5 dated 2-16-99 to add Tax-Managed Value.
f. Amendment No. 6 dated 7-30-99 to add Large Cap Value.
g. Amendment No. 7 dated 11-19-99 to add Veedot and Veedot Large
Cap.
h. Amendment No. 8 dated 6-1-00 to add Life Sciences & Technology.
i. Amendment No. 9 dated 4-30-01 to add European Growth.
j. Amendment No. 10 dated 12-3-01 to remove Limited-Term Bond and
Bond due to fund mergers.
k. Amendment No. 11 dated 9-3-02 to add Large Company Growth Fund.
2. MV plan dated 8-1-97.
a. Amended 6-29-98 to add Prime Money Market and Small Cap Quant.
b. Amendment No. 1 dated 8-1-01 to add Diversified Bond Fund and
High-Yield Fund for ACIT and change fund names for ACGIT.
c. Amendment No. 2 dated 12-3-01 to remove Short-Term Treasury;
change names for Inflation-Adjusted Treasury and Long-Term
Treasury. Remove High-Yield for ACIT because merger did not take
place.
d. Amendment No. 3 dated 7-1-02 to add back High-Yield.
B. C CLASS
1. KC plan dated 3-1-01 effective 5-1-01 (original plan included European
Growth). This plan is in addition to the plan dated 9-3-96.
a. Amendment No. 1 dated 4-30-01 effective 5-1-01 to add Large Cap
Value.
b. Amendment No. 2 dated 9-3-02 to add Large Company Growth Fund,
add C shares for Select and New Ops II with load fund changes and
reflect name change for Large Cap Value.
2. MV plan dated 9-16-00 effective 5-1-01. This plan is in addition to
the plan dated 8-1-97.
a. Amendment No. 1 dated 8-01-01 to add High-Yield Fund and change
fund names for ACGIT and ACMT.
b. Amendment No. 2 dated 12-3-01 to remove ACIT High-Yield because
merger did not take place.
c. Amendment No. 3 dated 7-1-02 to add ACIT High-Yield back.
d. Amendment No. 4 dated 9-3-02 to add Diversified Bond.
C. CLASS II (ACVP and ACVPII)
1. American Century Variable Portfolios, Inc. Class II Plan dated
5-18-01.
a. Amendment No. 1 to add ACVP II as a party and VP Inflation
Protection Fund and VP Large Company Value Fund dated 12-31-02
D. A CLASS
1. Plan dated 9-3-02 (includes both MV and KC).
E. B CLASS
1. Plan dated 9-3-02 (includes both MV and KC).
F. C CLASS II
1. Plan dated 9-3-02 (includes both MV and KC).
G. R CLASS
1. Plan dated 8-29-03 (includes both MV and KC).
SCHEDULE V
INVESTMENT MANAGER AGREEMENTS
-----------------------------
A. KANSAS CITY FUNDS-EACH ISSUER HAS ITS OWN AGREEMENT THAT INCLUDES ALL
APPLICABLE CLASSES
1. American Century Mutual Funds, Inc.
a. Agreement dated 8-1-97.
b. Addendum dated 9-15-97 to add High-Yield.
c. Addendum dated 2-16-99 to add Tax-Managed Value Fund.
d. Addendum dated 11-30-99 to add Veedot and Veedot Large-Cap.
e. Amendment No. 1 dated 8-1-00 to change fees for Balanced and
Ultra.
f. Addendum dated 5-1-01 to add initial C class shares and New Opps
II.
g. Addendum dated 9-3-02 to add A, B, C and C II shares for Select
& New Opps II.
h. Addendum dated 8-29-03 to add R shares and remove funds that have
merged out of ACMF and reflect Tax-Managed Value name change.
2. American Century Capital Portfolios, Inc.
a. Agreement dated 8-1-97.
b. Addendum dated 7-30-98 to add Small Cap Value.
c. Addendum dated 1-29-99 to add Equity Index.
d. Amendment dated 7-30-99 to add Large Cap Value.
e. Amendment No. 1 dated 1-1-00 to change fee for Real Estate.
f. Addendum dated 5-1-01 to add initial C class shares.
g. Addendum dated 9-3-02 to add A, B and C II shares for Value and
Large Company Value (reflects name change of Large Cap Value to
Large Company Value.
h. Addendum dated 8-29-03 to add R shares.
3. American Century World Mutual Funds, Inc.
a. Agreement dated 8-1-97.
b. Addendum dated 12-1-98 to add Global Growth.
c. Addendum dated 6-1-00 to add Life Sciences and Technology.
d. Addendum dated 5-1-01 to add initial C class shares and European
Growth and International Opportunities.
e. Addendum dated 9-3-02 to add A, B and C II shares for
International Growth.
f. Addendum dated 8-29-03 to add R shares.
4. American Century Strategic Asset Allocations, Inc.
a. Agreement dated 8-1-97.
b. Addendum dated 7-10-00 to add Institutional class shares for all
3 funds.
c. Addendum dated 5-1-01 to add initial C class shares.
d. Addendum dated 8-29-03 to add R shares and EmVee Fund.
5. American Century Variable Portfolios, Inc.
a. Agreement dated 11-16-98.
b. Addendum dated 12-1-00 to add VP Equity Index, VP Global Growth,
VP Growth, VP Ultra and VP Vista.
c. Addendum dated 6-18-01 to add Class II for VP Ultra, VP Value, VP
International and VP Income & Growth.
d. Addendum dated 3-6-02 to add Class III for VP Ultra, VP Value, VP
International and VP Income & Growth.
e. Addendum dated 12-31-02 to add VP Large Company Value.
B. MOUNTAIN VIEW FUNDS-EACH CLASS HAS ITS OWN AGREEMENT THAT INCLUDES ALL
APPLICABLE ISSUERS (AMERICAN CENTURY CALIFORNIA TAX-FREE AND MUNICIPAL FUNDS,
AMERICAN CENTURY MUNICIPAL TRUST, AMERICAN CENTURY INVESTMENT TRUST, AMERICAN
CENTURY TARGET MATURITIES TRUST, AMERICAN CENTURY GOVERNMENT INCOME TRUST,
AMERICAN CENTURY QUANTITATIVE EQUITY FUNDS, AMERICAN CENTURY INTERNATIONAL BOND
FUNDS AMERICAN CENTURY VARIABLE PORTFOLIOS II, INC.)
1. MV-Investor Class dated 8-1-97
a. Amendment dated 3-31-98 to add High-Yield Municipal Fund
b. Amendment dated 7-1-98 to add Small Cap Quant Fund
c. Amendment No. 1 dated 9-16-00 to add Target 2030 and VP Prime
Money Market Fund.
d. Amendment No. 2 dated 8-1-01 to add Diversified Bond, Premium
Money Market and High-Yield Fund.
e. Amendment No. 3 dated 12-3-01 to remove Short-Term Treasury and
Long-Term Tax-Free; change names for Inflation-Adjusted Treasury
and Long-Term Treasury; remove ACIT High-Yield because merger did
not take place.
f. Amendment No. 4 dated 7-1-02 to add back High-Yield and fixes
incorrect fee schedule for Diversified Bond (should be schedule 5
not 4).
g. Amendment No. 5 dated 12-31-02 to add VP Inflation Protection
Fund and reflect fixed income fund mergers.
2. MV-Advisor Class dated 8-1-97
a. Amendment dated 6-1-98 to add Small Cap Quant & Prime Money
Market Fund
b. Amendment No. 1 dated 9-16-00 to add Target 2030.
c. Amendment No. 2 dated 8-1-01 to add Diversified Bond and
High-Yield Fund.
d. Amendment No. 3 dated 12-3-01 to remove Short-Term Treasury;
change names for Inflation-Adjusted Treasury and Long-Term
Treasury; remove ACIT High-Yield because merger did not take
place.
e. Amendment No. 4 dated 7-1-02 to add back High-Yield and fixes
incorrect fee schedule for Diversified Bond (should be schedule 5
not 4).
3. MV-C Class dated 9-16-00 effective 5-1-01.
a. Amendment No. 1 dated 8-1-01 to add High-Yield Fund.
b. Amendment No. 2 dated 12-3-01 to remove ACIT High-Yield Fund
because merger did not take place.
c. Amendment No. 3 dated 7-1-02 to add ACIT High-Yield.
d. Amendment No. 4 dated 9-3-02 to add Diversified Bond (at correct
Schedule 5 not 4) and reflect fixed income fund mergers.
4. MV - Institutional Class dated 8-1-97.
a. Amendment dated 6-1-98 to add Small Cap Quant ??
b. Amendment No. 1 dated 8-1-01 to add Diversified Bond Fund.
c. Amendment No. 2 dated 3-1-02 to add Inflation-Adjusted Bond Fund
and and fixes incorrect fee schedule for Diversified Bond (should
be schedule 5 not 4).
d. Amendment No. 3 dated 12-31-02 to add Tax-Free Bond Fund.
5. MV-A Class (for ACCTFMF, ACIT and ACMT only) dated 9-3-02.
6. MV-B Class (for ACCTFMF, ACIT and ACMT only) dated 9-3-02.
7. MV-C Class II (for ACCTFMF, ACIT and ACMT only) dated 9-3-02.
8. MV-Class II dated 12-31-02 (for ACVP II VP Inflation Protection Fund).
9. MV-R Class dated 8-29-03 (only issuer ACQEF).
SCHEDULE VI
SHAREHOLDER SERVICES AGREEMENTS
See Master Distribution and Shareholder Services Plans described on Schedule IV
SCHEDULE VII
SPECIFIED EXISTING AFFILIATES
SPECIFIED EXISTING FUND AFFILIATES
----------------------------------
Arizona Municipal Bond Fund
Balanced Fund
California High-Yield Municipal Fund
California Intermediate-Term Tax-Free Fund
California Limited-Term Tax-Free Fund
California Long-Term Tax-Free Fund
Capital Preservation Fund
Capital Value Fund
Diversified Bond Fund
Emerging Markets Fund
EmVee Fund
Equity Growth Fund
Equity Income Fund
Equity Index Fund
European Growth Fund
Florida Municipal Bond Fund
Giftrust Fund
Xxxxxx Xxx Fund
Global Gold Fund
Global Growth Fund
Government Bond Fund
Growth Fund
Heritage Fund
High-Yield Fund
High-Yield Municipal Fund
Income & Growth Fund
Inflation-Adjusted Bond Fund
International Bond Fund
International Discovery Fund
International Growth Fund
International Opportunities Fund
Large Company Growth Fund
Large Company Value Fund
Life Sciences Fund
New Opportunities Fund
New Opportunities II Fund
Real Estate Fund
Select Fund
Short-Term Government Fund
Small Company Fund
Small Cap Value Fund
Strategic Allocation Fund - Aggressive
Strategic Allocation Fund - Conservative
Strategic Allocation Fund - Moderate
Target 2005 Fund
Target 2010 Fund
Target 2015 Fund
Target 2020 Fund
Target 2025 Fund
Target 2030 Fund
Tax-Free Bond Fund
Technology Fund
Ultra Fund
Utilities Fund
Value Fund
Veedot Fund
Veedot Large-Cap Fund
Vista Fund
VP Balanced Fund
VP Capital Appreciation Fund
VP Equity Index Fund
VP Income & Growth Fund
VP Inflation Protection Fund
VP International Fund
VP Global Growth Fund
VP Growth Fund
VP Large Company Value Fund
VP Ultra Fund
VP Value Fund
VP Vista Fund
SPECIFIED EXISTING INVESTMENT ADVISER AFFILIATES
------------------------------------------------
American Century Companies, Inc.
American Century Services Corporation
American Century Investment Services, Inc.
Xxxxxxx Institute for Medical Research
Several trusts established for the family of Xxxxx X. Xxxxxxx
X.X. Xxxxxx & Co., Inc.
EXHIBIT 2.7(E)
FORM OF NOTE
$ New York, New York
------------------------------------ , 200_
FOR VALUE RECEIVED, [the Borrower] (the "BORROWER"), hereby unconditionally
promises to pay to the order of __________________________, at the office of
JPMorgan Chase Bank, as administrative agent for the Banks (the "BANKS") under
the Credit Agreement, as hereinafter defined (in such capacity, the
"ADMINISTRATIVE AGENT"), located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
in lawful money of the United States of America and in immediately available
funds, on the Commitment Termination Date the principal amount of (a) DOLLARS ($
), or, if less (b) the aggregate unpaid principal amount of all Loans made by
the Banks to the Borrower pursuant to subsection 2.1 of the Credit Agreement, as
hereinafter defined.
The undersigned further agrees to pay interest in like money at such office
on the unpaid principal amount hereof from time to time from the Closing Date at
the applicable rates per annum set forth in subsection 3.2 of the Credit
Agreement referred to below until any such amount shall become due and payable
(whether at the stated maturity, by acceleration or otherwise), and thereafter
on such overdue amount at the rate per annum set forth in subsection 3.2(b) of
the Credit Agreement until paid in full (both before and after judgment).
Interest shall be payable in arrears on each applicable Interest Payment Date,
commencing on the first such date to occur after the date hereof and terminating
upon payment (including prepayment) in full of the unpaid principal amount
hereof; PROVIDED that interest accruing on any overdue amount shall be payable
on demand.
The holder of this Note is authorized to endorse on the schedule annexed
hereto and made a part hereof the date and amount of each Loan made to the
Borrower pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof. Each such endorsement shall
constitute PRIMA FACIE evidence of the accuracy of the information endorsed. The
failure to make any such endorsement shall not affect the obligations of the
Borrower in respect of such Loan.
This Note (a) is one of the Notes referred to in the Amended and Restated
Credit Agreement, dated as of December 17, 2003 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among (i) certain
American Century Funds named therein (the "Funds"), each on behalf of itself and
the series and portfolios named therein of such Funds (including the Borrower),
(ii) the Banks and (iii) the Administrative Agent, (b) is subject to the
provisions of the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement.
Upon the occurrence of one or more Events of Default, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK.
[NAME OF FUND on behalf
of [NAME OF BORROWER]
By:
-----------------------------------------
Name:
Title:
SCHEDULE A TO NOTE
------------------
LOANS AND REPAYMENTS OF LOANS
============== =============== =============== ================ ===============
AMOUNT OF UNPAID
PRINCIPAL PRINCIPAL
AMOUNT OF OF LOANS BALANCE NOTATION
DATE LOANS REPAID OF LOANS MADE BY
-------------- --------------- --------------- ---------------- ---------------
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============== =============== =============== ================ ===============
EXHIBIT 2.11(A)
---------------
FORM FOR DESIGNATION OF NEW BORROWERS
--------- --, ----
JPMorgan Chase Bank, as Administrative Agent
[List Banks]
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement,
dated as of December 17, 2003 (as amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"), among (i) certain American Century
Funds named therein, each on behalf of itself and the series and portfolios
named therein of such Funds (each a "BORROWER", and collectively the
"BORROWERS"), (ii) the several banks from time to time parties to this Agreement
(the "BANKS") and (iii) the Administrative Agent. Capitalized terms used but not
defined herein shall have the meanings ascribed to them in the Credit Agreement.
The [NAME OF FUND] (the "FUND") on behalf of itself and [NAME OF NEW
BORROWER] (the "SERIES") hereby requests pursuant to Section 2.11 of the Credit
Agreement that the Series be admitted as an additional Borrower under the Credit
Agreement. Furthermore, the Fund request that Schedule I to the Credit Agreement
be replaced with the form of Schedule I attached hereto.
The Fund, on behalf of itself and the Series, hereby represents and
warrants to the Administrative Agent and each Bank that as of the date hereof
and after giving effect to the admission of the Series as an additional Borrower
under the Credit Agreement: (i) the representations and warranties set forth in
Section 7 of the Credit Agreement are true and correct with respect to the
Series; (ii) the Series is in compliance in all material respects with all the
terms and provisions set forth in the Credit Agreement on its part to be
observed or performed as of the date hereof and after giving effect to the
admission; (iii) no Default or Event of Default with respect to the Series, nor
any event which with the giving of notice or the expiration of any applicable
grace period or both would constitute such a Default or Event of Default with
respect to the Series has occurred and is continuing.
The Series agrees to be bound by the terms and conditions of the Credit
Agreement in all respects as a Borrower thereunder and hereby assumes all of the
obligations of a Borrower thereunder.
Please indicate your assent to the admission of each Series as an
additional Borrower under the Credit Agreement and the replacement of Schedule I
to the Credit Agreement by signing below where indicated.
Please indicate your assent to the admission of the Series as an additional
Borrower under the Credit Agreement and the replacement of Schedule I to the
Credit Agreement by signing below where indicated.
[NAME OF FUND] on behalf of
[NAME OF SERIES]
By:
-------------------------------------------
Name:
Title:
AGREED AND ACCEPTED:
JPMORGAN CHASE BANK
as a Bank [and Administrative Agent]
By:
---------------------------------------
Name:
Title:
EXHIBIT 6.1(B)
--------------
FORM OF OPINION OF COUNSEL TO BORROWER
[To be Inserted]
EXHIBIT 11.6(C)
---------------
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to Amended and Restated Credit Agreement, dated as of
December 17, 2003 (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among (i) certain American Century Funds named
therein (each a "FUND", and collectively, the "FUNDS"), each on behalf of itself
and the series and portfolios named therein of such Funds (each a "BORROWER",
and collectively the "BORROWERS"), (ii) the several banks from time to time
parties to this Agreement (the "BANKS") and (iii) the Administrative Agent.
Unless otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
____________________________ (the "ASSIGNOR") and (the "ASSIGNEE") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below) the interest described in Schedule 1 hereto
(the "ASSIGNED INTEREST") in and to the Assignor's rights and obligations under
the Credit Agreement.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to or in any connection with the Credit Agreement or
with respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower, or any other obligor or the
performance or observance by any Borrower, or any other obligor of any of their
respective obligations under the Credit Agreement or any other Loan Document or
any other instrument or document furnished pursuant hereto or thereto; and (c)
attaches any Notes held by it evidencing the Assigned Interest and (i) requests
that the Administrative Agent, upon request by the Assignee, exchange the
attached Notes for a new Note or Notes payable to the Assignee and (ii) if the
Assignor has retained any interest in the Assigned Interest, requests that the
Administrative Agent exchange the attached Notes for a new Note or Notes payable
to the Assignor, in each case in amounts which reflect the assignment being made
hereby (and after giving effect to any other assignments which have become
effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
a copy of the Credit Agreement, together with copies of such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent
or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement,
the other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (e) agrees
that it will perform in accordance with its terms all the obligations which by
the terms of the Credit Agreement are required to be performed by it as a Bank
including, if it is organized under the laws of a jurisdiction outside the
United States, its obligation pursuant to subsection 5(b) of the Credit
Agreement.
4. The effective date of this Assignment and Acceptance shall be (the
"EFFECTIVE DATE"). Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance by it and recording
by the Administrative Agent pursuant to the Credit Agreement, effective as of
the Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignee whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Administrative Agent for
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the substantive laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
------------------------------ --------------------------------
Name: Name:
Title: Title:
Accepted and Consented To:
JPMORGAN CHASE BANK, as a Bank [and as
Administrative Agent]
By:
----------------------------
Name:
Title:
THE FUNDS, each on behalf
of itself and NAME OF BORROWERS]
By:
-----------------------------
Name:
Title:
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT
DATED AS OF DECEMBER 17, 2003,
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Principal Commitment Percentage
Amount Assigned Assigned(1)
--------------- -----------
$_____________________ __._________________%
_____________________
(1) Calculate the Commitment Percentage that is assigned to at least 15
decimal places and show as a percentage of the aggregate commitments of all
Banks.
