EXHIBIT (h)(2)
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AMERICAN CENTURY FUNDS
CREDIT AGREEMENT
DATED AS OF DECEMBER 12, 2007
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
THE SEVERAL BANKS FROM
TIME TO TIME PARTY HERETO
BANC OF AMERICA SECURITIES LLC AND
CITIGROUP GLOBAL MARKETS INC.,
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
CITIBANK NA, AS SYNDICATION AGENT
DEUTSCHE BANK AG NEW YORK BRANCH, AS DOCUMENTATION AGENT
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A/72335952.4
TABLE OF CONTENTS
PAGE
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SECTION 1. Definitions and Accounting Matters...........................................1
Section 1.1 Certain Defined Terms.................................................1
Section 1.2 Accounting Terms and Determinations...................................8
SECTION 2. Commitments, Loans, Notes and Prepayments....................................8
Section 2.1 Loans.................................................................8
Section 2.2 Procedure for Borrowings..............................................8
Section 2.3 Changes of Commitments................................................9
Section 2.4 Commitment Fee........................................................9
Section 2.5 Lending Offices.......................................................9
Section 2.6 Several Obligations; Remedies Independent............................10
Section 2.7 Notes................................................................10
Section 2.8 Optional Prepayments.................................................10
Section 2.9 Mandatory Prepayments................................................11
Section 2.10 Extension of Commitment Termination Date.............................11
Section 2.11 Designation of Additional Borrower Amendments to Schedule I..........12
Section 2.12 Swing Line Commitment................................................13
Section 2.13 Procedure for Swing Line Borrowing...................................13
Section 2.14 Refunding of Swing Line Loans........................................14
Section 2.15 Interfund Lending....................................................14
Section 2.16 Increase In Commitments..............................................14
SECTION 3. Payments of Principal and Interest..........................................17
Section 3.1 Repayment of Loans...................................................17
Section 3.2 Interest.............................................................18
SECTION 4. Payments; Pro Rata Treatment; Computations; Etc.............................18
Section 4.1 Payments.............................................................18
Section 4.2 Pro Rata Treatment...................................................19
Section 4.3 Computations.........................................................20
Section 4.4 Minimum Amounts......................................................20
Section 4.5 Certain Notices......................................................20
Section 4.6 Non-Receipt of Funds by the Administrative Agent.....................20
(i)
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Section 4.7 Sharing of Payments, Etc.............................................21
Section 4.8 Requirements of Law..................................................22
SECTION 5. U.S. Taxes..................................................................23
SECTION 6. Conditions Precedent........................................................25
Section 6.1 Initial Loan.........................................................25
Section 6.2 Initial and Subsequent Loans.........................................27
SECTION 7. Representations and Warranties..............................................27
Section 7.1 Corporate Existence; Compliance with Law.............................28
Section 7.2 Investment Company...................................................28
Section 7.3 Permission to Borrow.................................................28
Section 7.4 Financial Condition..................................................28
Section 7.5 Litigation...........................................................29
Section 7.6 No Default...........................................................29
Section 7.7 No Breach............................................................29
Section 7.8 Action...............................................................29
Section 7.9 Approvals............................................................29
Section 7.10 Use of Credit........................................................30
Section 7.11 ERISA................................................................30
Section 7.12 Taxes................................................................30
Section 7.13 True and Complete Disclosure.........................................30
Section 7.14 Accuracy of Information..............................................30
Section 7.15 Indebtedness.........................................................31
Section 7.16 Property and Liens...................................................31
Section 7.17 Blue Sky Registrations...............................................31
Section 7.18 Federal Regulations..................................................31
Section 7.19 Apportionment Among Funds............................................31
Section 7.20 No Material Adverse Change...........................................31
SECTION 8. Covenants of the Funds......................................................31
Section 8.1 Financial Statements.................................................32
Section 8.2 Certificates; Other Information......................................33
Section 8.3 Notices..............................................................34
Section 8.4 Existence, Etc.......................................................34
Section 8.5 Use of Proceeds......................................................36
(ii)
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Section 8.6 Insurance............................................................36
Section 8.7 Prohibition of Fundamental Changes...................................36
Section 8.8 Limitations on Liens.................................................37
Section 8.9 Indebtedness.........................................................38
Section 8.10 Dividend Payments....................................................38
Section 8.11 Asset Coverage; Borrowing Limits.....................................38
Section 8.12 Lines of Business....................................................38
Section 8.13 Modifications of Certain Documents...................................38
SECTION 9. Events of Default...........................................................38
SECTION 10. The Administrative Agent....................................................41
Section 10.1 Appointment and Authority............................................41
Section 10.2 Rights of a Bank.....................................................42
Section 10.3 Exculpatory Provisions...............................................42
Section 10.4 Reliance by Administrative Agent.....................................43
Section 10.5 Delegation of Duties.................................................43
Section 10.6 Resignation of Administrative Agent..................................44
Section 10.7 Non Reliance on Administrative Agent and other Banks.................44
Section 10.8 No Other Duties......................................................45
Section 10.9 Administrative Agent May File Proofs of Claim........................45
SECTION 11. Miscellaneous...............................................................46
Section 11.1 Waiver...............................................................46
Section 11.2 Notices..............................................................46
Section 11.3 Expenses, Etc........................................................48
Section 11.4 Amendments, Etc......................................................49
Section 11.5 Successors and Assigns...............................................49
Section 11.6 Assignments and Participations.......................................50
Section 11.7 Survival.............................................................51
Section 11.8 Caption..............................................................51
Section 11.9 Counterparts; Integration; Effectiveness.............................52
Section 11.10 Governing Law; Submission to Jurisdiction............................52
Section 11.11 Waiver of Jury Trial.................................................52
Section 11.12 Treatment of Certain Information; Confidentiality....................53
Section 11.13 Limited Recourse.....................................................54
(iii)
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Section 11.14 Severability.........................................................55
Section 11.15 No Advisory or Fiduciary Responsibility..............................55
Section 11.16 USA Patriot Act Notice...............................................56
(iv)
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SCHEDULE I - Borrower
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
(v)
A/72335952.4
CREDIT AGREEMENT, dated as of December 12, 2007 (this "AGREEMENT") among
(i) each fund signatory hereto (each a "FUND" and collectively, the "FUNDS") on
behalf of itself or on behalf of each entity listed on SCHEDULE I beneath such
fund's name, which entity is a series or portfolio of such Fund (each such
series or portfolio, a "BORROWER" and, collectively, the "BORROWERS"), (ii) the
several banks from time to time parties to this Agreement, which banks are
listed on Schedule II (the "BANKS"), and (iii) BANK OF AMERICA, N.A., as
administrative agent for the Banks hereunder (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):
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"ADVISERS ACT" shall mean the Investment Advisers Act of 1940, as amended.
"AFFILIATE" shall mean 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.
A/72335952.4
"AGGREGATE COMMITMENT" shall mean the total of all Commitments of all
Banks, as may be reduced or increased from time to time in the accordance with
the terms of this Agreement. On the Closing Date, the Aggregate Commitment shall
be equal to $500,000,000.
"APPLICABLE LENDING OFFICE" shall mean, for each Bank, the office or
offices of such Bank described as such in such Bank's Administrative
Questionnaire 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 0.40% per annum.
"ARRANGER" shall mean each of Banc of America Securities LLC and Citigroup
Global Markets Inc.
"ASSET COVERAGE RATIO" 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 Ratio, 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.
"BANK OF AMERICA" shall mean Bank of America, N.A., together with its
successors and assigns.
"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 12, 2007.
"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.
A/72335952.4 2
"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 December 10, 2008 (termination to
be effective as of the close of business on such day), 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.
"DEBTOR RELIEF LAWS" shall mean the Bankruptcy Code, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.
"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
A/72335952.4 3
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 Bank of America, 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
swaps, caps, or collar agreements, credit default swaps, Bond Market Association
swaps, total return swaps, 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" shall mean 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
A/72335952.4 4
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. or American Century Global Investment Management, Inc., as applicable.
"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.
A/72335952.4 5
"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.
"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 50% of the aggregate
amount of the Commitments or, if the Commitments shall have terminated, Banks
holding more than 50% 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.
A/72335952.4 6
"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.
"RELATED PARTIES" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"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
A/72335952.4 7
time outstanding not to exceed $50,000,000.
"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" shall mean, 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. Without limiting the foregoing,
in order to ensure that Borrowers that are part of any master/feeder or
fund-of-funds structure do not borrow against the same assets, for purposes of
calculating the Asset Coverage Ratio, if any Borrower invests in another
Borrower, the value of such assets shall, as between both such Borrowers, only
be counted once. By way of example, suppose (i) Borrower A invests solely in
Borrower B, (ii) the value of A's assets equals $1,000,000 and (iii) the value
of B's assets equals $10,000,000; if, in calculating A's Asset Coverage Ratio,
it is identified as having Total Assets equal to $1,000,000, then for purposes
of calculating B's Asset Coverage Ratio, B's Total Assets shall be limited to
$9,000,000.
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 Banks 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/72335952.4 8
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
Bank of America 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 0.06%. 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.
A/72335952.4 9
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 Ratio 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 or permitted by the Investment Company
Act, 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 Ratio is equal to or greater than 300% or (y) the aggregate
A/72335952.4 10
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 Banks,) given not earlier than 45 days and not later than 35
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
20 days prior to the Existing Commitment Termination 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 which is 20 days prior to the Existing Commitment Termination Date) and any
Bank that does not advise the Funds on or prior to the date which is 20 days
prior to the Existing Commitment Termination 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.
A/72335952.4 11
(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.
A/72335952.4 12
Subject to the terms and conditions hereof, Bank of America (in such capacity,
the "SWING LINE LENDER") agrees, in reliance upon the agreements of the other
Banks set forth in Section 2.14 hereof, 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 Aggregate Commitment. 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 $50,000 or an integral multiple
of $50,000 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
A/72335952.4 13
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 Lender (as a Bank) 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 the 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 tight 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/72335952.4 14
(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 such
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
A/72335952.4 15
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 2.16 INCREASE OF COMMITMENTS.
(a) The Borrowers may request an increase in the amount of the Aggregate
Commitment by offering to the Lenders or to other prospective Eligible Lenders
acceptable to the Administrative Agent ("PROSPECTIVE LENDERS") the opportunity
to increase their Commitments or to extend Commitments hereunder; PROVIDED,
HOWEVER, the Borrowers shall not request an increase that would cause the
Aggregate Commitment after giving effect to such increase to exceed
$600,000,000, and the Borrowers shall not make more than four Aggregate
Commitment increase requests under this SECTION 2.16 in any calendar year; and
PROVIDE, FURTHER, each Lender or Prospective Lender may accept or reject such
request in its sole and absolute discretion. Any such request shall be sent to
the Lenders, the Prospective Lenders and the Administrative Agent and shall (A)
refer to this Agreement, (B) specify (i) the aggregate amount of the increase
that is sought and (ii) the name of each Lender and Prospective Lender to which
the opportunity to increase or extend a Commitment is to be offered and the
amount of such offer, and (C) request that Lenders wishing to increase their
Commitments and Prospective Lenders wishing to extend new Commitments notify the
Administrative Agent within 14 days of the date of the Borrower's request.
Failure to respond within such period shall be deemed a REJECTION of the
Borrower's offer. Subject to the penultimate sentence of this Section 2.16, the
increase in the Commitment of each Lender that agrees to increase such
Commitment under this SECTION 2.16 shall be effective
A/72335952.4 16
fifteen (15) Business Days (or such later date as is acceptable to the Borrowers
and the Administrative Agent) after the date of the Borrowers' request without
any further action by the Lenders or any amendment to this Agreement. Upon the
effectiveness of any increase in a Lender's Commitment, SCHEDULE II shall be
deemed to have been amended to reflect the increase in such Lender's Commitment.
Each Prospective Lender that accepts the Borrowers' offer to extend a Commitment
shall become a party to this Agreement on such date or dates as may be mutually
satisfactory to such Prospective Lender, the Borrowers and the Administrative
Agent, subject to the Administrative Agent's receipt of a duly completed and
executed accession agreement in a form reasonably satisfactory to the
Administrative Agent. Upon the effectiveness of any accession agreement to which
any Prospective Lender is a party, (i) such Prospective Lender shall be entitled
to all rights, benefits and privileges accorded a Lender hereunder and (ii)
SCHEDULE II shall be deemed to have been amended to reflect the Commitment of
such Prospective Lender (as an additional Lender) as provided in such accession
agreement. Notwithstanding the foregoing, no increase in a Lender's Commitment
and no extension of a Commitment by a Prospective Lender shall become effective
until such time as the Administrative Agent shall have received a written
opinion of the Borrower's legal counsel, addressed to the Administrative Agent
and the Lenders and in form and substance satisfactory to the Administrative
Agent. The Administrative Agent shall give prompt notice to each Lender of (A)
any increase in any Lender's Commitment and (B) the Commitment of any additional
Lender, in each case under this SECTION 2.16.
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST.
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.
(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
A/72335952.4 17
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.
Section 4.1 Payments.
(a) 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 condition or deduction for any
counterclaim, defense, recoupment or setoff. 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 to the
Administrative Agent (Account No. 1366212250600, 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.
A/72335952.4 18
Section 4.2 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(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.
(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.
(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 be signed
A/72335952.4 19
by an authorized officer, shall be submitted to the Administrative Agent via fax
at the number specified on Schedule II (or such other number as the
Administrative Agent shall instruct the Borrower in writing) and by the time
specified in this Section 4.5(a) and 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
A/72335952.4 20
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 due 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).
A/72335952.4 21
(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.
A/72335952.4 22
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
A/72335952.4 23
(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
tight 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
A/72335952.4 24
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 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) true and correct copies,
certified as to authenticity by each Fund, of the Shareholder Services Agreement
for each Borrower, the Custody Agreement for 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, 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 party.
(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
Xxxxxxxxxxx X. Xxxxxxxxx, Vice President and Associate General Counsel of
American Century Services, LLC, 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 the Administrative Agent 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 Xxxxxxx
XxXxxxxxx LLP, special New York counsel to the Administrative
A/72335952.4 25
Agent, 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.
Without limiting the generality of the provisions of the last paragraph of
SECTION 10.3, for purposes of determining compliance with the conditions
specified in this SECTION 6.1, each Bank that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Bank unless the Administrative Agent shall
have received notice from such Bank prior to the proposed Closing Date
specifying its objection thereto.
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 Ratio of at least 300% of any Borrower and an "asset
coverage" (as provided by and in accordance with the Investment Company Act, it
being understood that "total assets," as used in the Investment Company Act
shall not include any encumbered assets of a Borrower) ratio of any Borrower of
at least 300%; and (ii) borrowing limits in such Borrower's Prospectus are 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).
A/72335952.4 26
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 or business trust, as the case may be, 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
A/72335952.4 27
such date and the results of its operations for such period, in conformity with
GAAP (as consistently applied).
Section 7.5 Litigation.
There are 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 or trust power, as the case may be,
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.
A/72335952.4 28
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 filed 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.
A/72335952.4 29
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
A/72335952.4 30
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) promptly upon the request of any Bank and as soon as available 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/00000000.4 31
(a) concurrently with the delivery of the financial statements referred to
in SECTIONS 8.1(A) and (B), and, in addition, not later than ten days after the
last Business Day of each March, June, September and December, 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; provided that the foregoing may be delivered
electronically to the Administrative Agent and, if so delivered, the
Administrative Agent shall make the same available to the Lenders via Intralinks
(or similar internet medium); and
(c) 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 which would require
the filing of a Prospectus supplement with the Commission.
Each Borrower hereby acknowledges that (a) the Administrative Agent and/or an
Arranger will make available to the Banks materials and/or information provided
by or on behalf of a Borrower hereunder (collectively, "BORROWER MATERIALS") by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the "PLATFORM") and (b) certain of the Banks (each, a "PUBLIC LENDER")
may have personnel who do not wish to receive material non-public information
with respect to a Borrower or its Affiliates, or the respective securities of
any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons' securities. Each
Borrower hereby agrees that so long as such Borrower is the issuer of any
outstanding debt or equity securities that are registered or issued pursuant to
a private offering or is actively contemplating issuing any such securities (w)
all Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that
the word "PUBLIC" shall appear prominently on the first page thereof; (x) by
marking Borrower Materials "PUBLIC," such Borrower shall be deemed to have
authorized the Administrative Agent, the Arrangers and the Banks to treat such
Borrower Materials as not containing any material non-public information with
respect to such Borrower or its securities for purposes of United States Federal
and state securities laws (PROVIDED, HOWEVER, that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in SECTION
11.12); (y) all Borrower Materials marked "PUBLIC" are permitted to be made
available through a portion of the Platform designated "Public Investor;" and
(z) the Administrative Agent and any Arranger shall be entitled to treat any
Borrower Materials that are not marked "PUBLIC" as being suitable only for
posting on a portion of the Platform not designated "Public Investor."
Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx
any Borrower Materials "PUBLIC."
A/72335952.4 32
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;
A/72335952.4 33
(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
A/00000000.4 34
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 Ratio of each
Borrower shall not be reduced as a result thereof,
A/72335952.4 35
(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, (b)
obligations under Financial Contracts and (c) Indebtedness to the custodian
under its Custody Agreement(s) for overdraft charges incurred in the ordinary
course of business.
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 shall 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 Ratio for any Borrower to be less
than 300% at any time, and will not permit the "asset coverage" (as defined in
the Investment Company Act)
A/72335952.4 36
ratio for any Borrower to be less than 300% at any time, it being understood
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
A/72335952.4 37
(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
A/72335952.4 38
(l) A Fund or a Borrower shall fail 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 been 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
A/72335952.4 39
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.
If a Fund is organized as a business trust, the parties hereto acknowledge and
agree that every note, bond, contract, instrument, certificate or undertaking
and every other act or thing whatsoever issued, executed or done by or on behalf
of such Fund on behalf of itself or a Borrower by any trustee thereof in
connection with the Fund shall be conclusively deemed to have been issued,
executed or done only in or with respect to his or her capacity as a trustee and
such trustee shall not be personally liable thereon. Neither such Fund nor any
of its trustees, nor any officer, employee nor agent of such Fund shall have any
power to bind personally any shareholders thereof, nor to call upon any such
shareholder for the payment of any sum of money or assessment whatsoever other
than such as such shareholder may at any time personally agree to pay.
SECTION 10. THE ADMINISTRATIVE AGENT.
Section 10.1 Appointment and Authority.
Each of the Banks hereby irrevocably appoints Bank of America to act on its
behalf as the Administrative Agent hereunder and under the Notes and authorizes
the Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Administrative Agent and the Banks, and no Borrower shall have rights as a third
party beneficiary of any of such provisions.
Section 10.2 Rights of a Bank.
The Person serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Bank as any other Bank and may exercise
the same as though it were not the Administrative Agent and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Administrative Agent
hereunder in its individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with any
Borrower or any Subsidiary
A/72335952.4 40
or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Banks.
Section 10.3 Exculpatory Provisions.
The Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the Notes. Without limiting the generality of
the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default, Event of Default, Fund Default or Fund Event of
Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the Notes that the Administrative Agent is required to
exercise as directed in writing by the Majority Banks (or such other number or
percentage of the Banks as shall be expressly provided for herein or in the
Notes), PROVIDED that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to this Agreement, any
Note or applicable law; and
(c) shall not, except as expressly set forth herein and in the Notes, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or
any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it (i) with the consent or at the request of the Majority Banks (or such
other number or percentage of the Banks as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in SECTIONS 11.4 and 9) or (ii) in the absence of its
own gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default, Event of Default, Fund Default or
Fund Event of Default unless and until notice describing such Default, Event of
Default, Fund Default or Fund Event of Default is given to the Administrative
Agent by a Borrower or a Bank.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any Note, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default, Event of Default, Fund Default or Fund
Event of Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any Note or any other agreement, instrument or
document or (v) the satisfaction of any condition set forth in SECTION 6 or
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
Section 10.4 Reliance by Administrative Agent.
A/72335952.4 41
The Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan that by its
terms must be fulfilled to the satisfaction of a Bank, the Administrative Agent
may presume that such condition is satisfactory to such Bank unless the
Administrative Agent shall have received notice to the contrary from such Bank
prior to the making of such Loan. The Administrative Agent may consult with
legal counsel (who may be counsel for a Borrower), independent accountants and
other experts selected by it, and shall not be liable for any action taken or
not taken by it in accordance with the advice of any such counsel, accountants
or experts.
Section 10.5 Delegation of Duties.
The Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any Note by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent and
any such sub-agent may perform any and all of its duties and exercise its rights
and powers by or through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Section 10.6 Resignation of Administrative Agent.
The Administrative Agent may at any time give notice of its resignation to the
Banks and the Borrowers. Upon receipt of any such notice of resignation, the
Majority Banks shall have the right, with the consent of the Borrowers if no
Event of Default has occurred and is continuing, such consent not be
unreasonably withheld or delayed, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed
by the Majority Banks and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may on behalf of the Banks, appoint a
successor Administrative Agent meeting the qualifications set forth above;
PROVIDED that if the Administrative Agent shall notify the Borrowers and the
Banks that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Bank
directly, until such time as the Majority Banks appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such
A/72335952.4 42
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the Notes (if not already discharged therefrom as
provided above in this Section). The fees payable by the Borrowers to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrowers and such successor.
After the retiring Administrative Agent's resignation hereunder and under the
other Loan Documents, the provisions of this Article and SECTION 11.3 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this
Section shall also constitute its resignation as Swing Line Lender. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, (a)
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring Swing Line Lender, and (b) the
retiring Swing Line Lender shall be discharged from all of their respective
duties and obligations hereunder.
Section 10.7 Non Reliance on Administrative Agent and other Banks.
Each Bank acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Bank or any of their Related Parties and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Bank or any of their Related Parties and based
on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any Note or any related agreement or any
document furnished hereunder or thereunder.
Section 10.8 No Other Duties.
Anything herein to the contrary notwithstanding, none of the Arrangers or Book
Managers listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the Notes, except in its
capacity, as applicable, as the Administrative Agent or a Bank hereunder.
Section 10.9 Administrative Agent May File Proofs of Claim.
In case of the pendency of any proceeding under any Debtor Relief Law or any
other judicial proceeding relative to any Borrower, the Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether
the Administrative Agent shall have made any demand on such Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise
A/72335952.4 43
(d) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans and all other obligations that
are owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Banks and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Banks and the Administrative Agent and their respective
agents and counsel and all other amounts due the Banks and the Administrative
Agent under this Agreement) allowed in such judicial proceeding; and
(e) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Bank to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Banks, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under this Agreement.
Nothing contained herein shall be deemed to authorize the Administrative Agent
to authorize or consent to or accept or adopt on behalf of any Bank any plan of
reorganization, arrangement, adjustment or composition affecting the obligations
owing hereunder or the rights of any Bank to authorize the Administrative Agent
to vote in respect of the claim of any Bank in any such proceeding.
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 tight, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
Section 11.2 Notices.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subsection (b)
below), all notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopier as follows, and all notices
and other communications expressly permitted hereunder to be given by telephone
shall be made to the applicable telephone number, as follows:
(i) if to any Borrower, to the address, telecopier number, electronic
mail address or telephone number specified for such Borrower on
SCHEDULE I; and
A/72335952.4 44
(ii) if to the Administrative Agent, to the address, telecopier
number, electronic mail address or telephone number specified for
the Administrative Agent on SCHEDULE II and if to any Bank, to
the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Notices and other communications to the Banks hereunder may be
delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, PROVIDED that the foregoing shall not apply to notices to
any Bank pursuant to SECTION 2 if such Bank, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrowers
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
PROVIDED that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), PROVIDED that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE AGENT PARTIES
(AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN
CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the
Administrative Agent or any of its Related Parties (collectively, the "AGENT
PARTIES") have any liability to any Borrower, any Bank or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of a Borrower's or the Administrative Agent's
transmission of Borrower Materials through the Internet, except to the
A/72335952.4 45
extent that such losses, claims, damages, liabilities or expenses are determined
by a court of competent jurisdiction by a final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such Agent
Party; PROVIDED, HOWEVER, that in no event shall any Agent Party have any
liability to any Borrower, any Bank or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or actual
damages).
(d) Each of the Borrowers, the Administrative Agent and the Swing Line
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other
Bank may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the Borrowers, the Administrative
Agent and the Swing Line Lender. In addition, each Bank agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Bank.
Furthermore, each Public Lender agrees to cause at least one individual at or on
behalf of such Public Lender to at all times have selected the "Private Side
Information" or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in accordance
with such Public Lender's compliance procedures and applicable Law, including
United States Federal and state securities laws, to make reference to Borrower
Materials that are not made available through the "Public Side Information"
portion of the Platform and that may contain material non-public information
with respect to any Borrower or its securities for purposes of United States
Federal or state securities laws.
(e) The Administrative Agent and the Banks shall be entitled to rely and
act upon any notices (including loan requests) purportedly given by or on behalf
of a Borrower even if (i) such notices were not made in a manner specified
herein, were incomplete or were not preceded or followed by any other form of
notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. All telephonic notices to and
other telephonic communications with the Administrative Agent may be recorded by
the Administrative Agent, and each of the parties hereto hereby consents to such
recording.
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
A/72335952.4 46
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
A/72335952.4 47
applied as between the Banks, (vii) alter the required Asset Coverage Ratio 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, the
assignor and assignee shall deliver to the Funds and the Administrative
Agent a fully executed copy thereof and if the assignee, if it is not a
Bank, shall deliver to the Administrative Agent an Administrative
Questionnaire.
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,
A/72335952.4 48
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
A/72335952.4 49
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; Integration; Effectiveness.
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. This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in SECTION 6.1, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken
together, bear the signatures of each of the other parties hereto. Delivery of
an executed counterpart of a signature page of this Agreement by telecopy shall
be effective as delivery of a manually executed counterpart of this Agreement.
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 BANKS HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
A/72335952.4 50
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 of the Administrative Agent and the Banks agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any Note or any action or proceeding
relating to this Agreement or any Note or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to any assignee of or participant in, or any
prospective assignee of or participant in, any of its rights or obligations
under this Agreement or any Prospective Lenders invited to be a Bank pursuant to
Section 2.16, (g) with the consent of a Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of
this Section or (y) becomes available to the Administrative Agent, any Bank or
any of their respective Affiliates on a nonconfidential basis from a source
other than the Borrowers.
A/72335952.4 51
For purposes of this Section, "INFORMATION" means all information received from
any Borrower or any Fund relating to a Borrower or any Fund or any of their
respective businesses, other than any such information that is available to the
Administrative Agent or any Bank on a nonconfidential basis prior to disclosure
by such Borrower or any Fund, PROVIDED that, in the case of information received
from a Borrower or a Fund after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
Each of the Administrative Agent and the Banks acknowledges that (a) the
Information may include material non-public information concerning a Borrower or
a Fund, as the case may be, (b) it has developed compliance procedures regarding
the use of material non-public information and (c) it will handle such material
non-public information in accordance with applicable law, including United
States Federal and state securities laws.
(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 SECTION
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.
If a Borrower is organized as a business trust (or a series thereof), the
parties acknowledge and agree that every note, bond, contract, instrument,
certificate or undertaking and every other act or thing whatsoever issued,
executed, or done by or on behalf of such Borrower by any trustee thereof in
connection with the Borrower shall be conclusively deemed to have been issued,
executed or done only in or with respect to his or her capacity as a trustee and
such trustee shall not be personally liable thereon. Neither such Borrower nor
any of its trustees, nor any officer, employee nor agent of such Borrower shall
have any power to bind personally any shareholders thereof, nor to call upon any
shareholder for the payment of any sum of money or assessment whatsoever other
than such as the shareholder may at any time personally agree to pay.
A/72335952.4 52
Section 11.14 Severability.
If any provision of this Agreement or any Note is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the Notes shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to replace
the illegal, invalid or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions. The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 11.15 No Advisory or Fiduciary Responsibility.
In connection with all aspects of each transaction contemplated hereby
(including in connection with any amendment, waiver or other modification
hereof), each Borrower acknowledges and agrees that: (i) (A) the arranging and
other services regarding this Agreement provided by the Administrative Agent and
the Arrangers are arm's-length commercial transactions between each Borrowers
and its Affiliates, on the one hand, and the Administrative Agent and the
Arrangers, on the other hand, (B) each Borrower has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate,
and (C) each Borrower is capable of evaluating, and understands and accepts, the
terms, risks and conditions of the transactions contemplated hereby; (ii) (A)
the Administrative Agent and each Arranger each is and has been acting solely as
a principal and, except as expressly agreed in writing by the relevant parties,
has not been, is not, and will not be acting as an advisor, agent or fiduciary
for any Borrower or any of its Affiliates, or any other Person and (B) neither
the Administrative Agent nor any other Arranger has any obligation to any
Borrower or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein; and (iii) the
Administrative Agent and the Arrangers and their respective Affiliates may be
engaged in a broad range of transactions that involve interests that differ from
those of the Borrowers and their respective Affiliates, and neither the
Administrative Agent nor any Arranger has any obligation to disclose any of such
interests to any Borrower or any of its Affiliates. To the fullest extent
permitted by law, each Borrower hereby waives and releases any claims that it
may have against the Administrative Agent and the Arrangers with respect to any
breach or alleged breach of agency or fiduciary duty in connection with any
aspect of any transaction contemplated hereby.
Section 11.16 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.
A/00000000.4 53
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to
be duly executed by their respective authorized officers as of the day and year
first written above.
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Vice President
A/72335952.4 54
AMERICAN CENTURY MUTUAL
FUNDS, INC., ON BEHALF OF:
Balanced Fund
Capital Growth Fund
Capital Value Fund
Focused Growth Fund
Fundamental Equity Fund
Giftrust Fund
Growth Fund
Heritage Fund
New Opportunities Fund
New Opportunities II Fund
NT Vista Fund
NT Growth Fund
Select Fund
Ultra Fund
Veedot Fund
Vista Fund
Small Cap Growth Fund
Mid Cap Growth Fund
AMERICAN CENTURY WORLD
MUTUAL FUNDS, INC., ON BEHALF OF:
Emerging Markets Fund
Global Growth Fund
International Growth Fund
International Discovery Fund
International Stock Fund
International Opportunities Fund
International Value Fund
Life Sciences Fund
NT Emerging Markets Fund
NT International Growth Fund
Technology Fund
AMERICAN CENTURY CAPITAL
PORTFOLIOS, INC., ON BEHALF OF:
Equity Income Fund
Equity Index Fund
Large Company Value Fund
Mid Cap Value Fund
NT Large Company Value Fund
NT Mid Cap Value Fund
Real Estate Fund
Small Cap Value Fund
Value Fund
AMERICAN CENTURY STRATEGIC
ASSET ALLOCATIONS, INC., ON BEHALF OF:
Xxxxxx Fund
Strategic Allocation: Aggressive Fund
Strategic Allocation: Conservative Fund
Strategic Allocation: Moderate Fund
AMERICAN CENTURY VARIABLE
PORTFOLIOS, INC., on behalf of
VP Balanced Fund
VP Capital Appreciation Fund
VP Income & Growth Fund
VP International Fund
VP Large Company Value Fund
VP Mid Cap Value Fund
VP Ultra Fund
VP Value Fund
VP Vista Fund
AMERICAN CENTURY CALIFORNIA TAX-FREE AND
MUNICIPAL FUNDS, ON BEHALF OF:
California High-Yield Municipal Fund
California Long-Term Tax-Free Fund
California Tax-Free Bond Fund
AMERICAN CENTURY MUNICIPAL
TRUST, on behalf of
High-Yield Municipal Fund
Tax-Free Bond Fund
Long Term Tax Free Fund
AMERICAN CENTURY TARGET
MATURITIES TRUST, on behalf of
Target Maturities Trust: 2010
Target Maturities Trust: 2015
Target Maturities Trust: 2020
Target Maturities Trust: 2025
AMERICAN CENTURY GOVERNMENT
INCOME TRUST, ON BEHALF OF:
Xxxxxx Mae Fund
Government Bond Fund
Inflation-Adjusted Bond Fund
Short-Term Government Fund
AMERICAN CENTURY QUANTITATIVE
EQUITY FUNDS, INC., ON BEHALF OF:
Disciplined Growth Fund
Equity Growth Fund
Global Growth Fund
Income & Growth Fund
International Core Equity Fund
Long/Short Equity Fund
NT Equity Growth Fund
NT Small Company Fund
Small Company Fund
Utilities Fund
AMERICAN CENTURY INVESTMENT
TRUST, ON BEHALF OF:
Core Plus Fund
Diversified Bond Fund
High-Yield Bond Fund
High-Yield Fund
Inflation-Protection Bond Fund
NT Diversified Bond
Select Bond Fund
Short Duration Fund
AMERICAN CENTURY INTERNATIONAL
BOND FUNDS, ON BEHALF OF:
International Bond Fund
AMERICAN CENTURY VARIABLE
PORTFOLIOS II, INC., ON BEHALF OF:
VP Inflation Protection Fund
AMERICAN CENTURY GROWTH
FUNDS, INC., ON BEHALF OF:
Legacy Focused Large-Cap Fund
Legacy Large Cap Fund
Legacy Multi-Cap Fund
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Fund Treasurer for each of the
above entities
BANK OF AMERICA, N.A.,
as a Bank
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Vice President
A/72335952.4 58
CITIBANK, N.A.,
as a Bank
/s/ Xxxxx Xxx
By: ---------------------------------
Name: Xxxxx Xxx
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
as a Bank
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Asst. Vice President
THE BANK OF NEW YORK
as a Bank
By: /s/ Xxxxxx XxXxxxxx
---------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
CREDIT SUISSE, CAYMAN ISLAND BRANCH
as a Bank
By: /s/ Xxx Xxxxx /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxx Xxxxx Xxxxxx Xxxxxxx
Title: Director AVP
THE NORTHERN TRUST COMPANY
as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
UMB BANK, N.A.
as a Bank
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
A/72335952.4 64
COMMERCE BANK, N.A.
as a Bank
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title:Vice President
A/72335952.4 65
SCHEDULE I
BORROWERS
AMERICAN CENTURY MUTUAL FUNDS, INC., on behalf of:
Balanced Fund
Capital Growth Fund
Capital Value Fund
Focused Growth Fund
Fundamental Equity Fund
Giftrust Fund
Growth Fund
Heritage Fund
New Opportunities Fund
New Opportunities II Fund
NT Vista Fund
NT Growth Fund
Select Fund
Ultra Fund
Veedot Fund
Vista Fund
Small Cap Growth Fund
Mid Cap Growth Fund
AMERICAN CENTURY WORLD MUTUAL FUNDS, INC., on behalf of:
Emerging Markets Fund
Global Growth Fund
International Growth Fund
International Discovery Fund
International Stock Fund
International Opportunities Fund
International Value Fund
Life Sciences Fund
NT Emerging Markets Fund
NT International Growth Fund
Technology Fund
AMERICAN CENTURY CAPITAL PORTFOLIOS, INC., on behalf of
Equity Income Fund
Equity Index Fund
Large Company Value Fund
Mid Cap Value Fund
NT Large Company Value Fund
NT Mid Cap Value Fund
Real Estate Fund
Small Cap Value Fund
Value Fund
A/72335952.4 67
AMERICAN CENTURY STRATEGIC ASSET ALLOCATIONS, INC., on behalf of
Xxxxxx Fund
Strategic Allocation: Aggressive Fund
Strategic Allocation: Conservative Fund
Strategic Allocation: Moderate Fund
AMERICAN CENTURY VARIABLE PORTFOLIOS, INC., on behalf of
VP Balanced Fund
VP Capital Appreciation Fund
VP Income & Growth Fund
VP International Fund
VP Large Company Value Fund
VP Mid Cap Value Fund
VP Ultra Fund
VP Value Fund
VP Vista Fund
AMERICAN CENTURY CALIFORNIA TAX-FREE
AND MUNICIPAL FUNDS, on behalf of
California High-Yield Municipal Fund
California Long-Term Tax-Free Fund
California Tax-Free Bond Fund
AMERICAN CENTURY MUNICIPAL TRUST, on behalf of
High-Yield Municipal Fund
Tax-Free Bond Fund
Long Term Tax Free Fund
AMERICAN CENTURY TARGET MATURITIES TRUST, on behalf of
Target Maturities Trust: 2010
Target Maturities Trust: 2015
Target Maturities Trust: 2020
Target Maturities Trust: 2025
AMERICAN CENTURY GOVERNMENT INCOME TRUST, on behalf of
Xxxxxx Xxx Fund
Government Bond Fund
Inflation-Adjusted Bond Fund
Short-Term Government Fund
A/72335952.4 68
AMERICAN CENTURY QUANTITATIVE EQUITY FUNDS, INC., on behalf of
Disciplined Growth Fund
Equity Growth Fund
Global Growth Fund
Income & Growth Fund
International Core Equity Fund
Long/Short Equity Fund
NT Equity Growth Fund
NT Small Company Fund
Small Company Fund
Utilities Fund
AMERICAN CENTURY INVESTMENT TRUST, on behalf of
Core Plus Fund
Diversified Bond Fund
High-Yield Bond Fund
High-Yield Fund
Inflation-Protection Bond Fund
NT Diversified Bond Fund
Select Bond Fund
Short Duration Fund
AMERICAN CENTURY INTERNATIONAL BOND FUNDS, on behalf of
International Bond Fund
AMERICAN CENTURY VARIABLE PORTFOLIOS II, INC., on behalf of
VP Inflation Protection Fund
AMERICAN CENTURY GROWTH FUNDS, INC., on behalf of
Legacy Focused Large-Cap Fund
Legacy Large Cap Fund
Legacy Multi-Cap Fund
A/72335952.4 69
SCHEDULE II
COMMITMENTS, ADDRESSES, ETC.
NAME AND ADDRESS OF BANK COMMITMENT
BANK OF AMERICA, N.A. $125,000,000
Notices for all but loan requests:
Bank of America, N.A.
Mail Code: NC1-001-15-14
One Independence Center
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxx
Phone: (000)000-0000
Fax: (000)000-0000
Email: xxxxx.x.xxxx@xxxxxxxxxxxxx.xxx
Notices of borrowings:
Bank of America, N.A.
Mail Code: NC1-001-04-39
One Independence Center
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx
Phone: (000)000-0000
Fax: (000)000-0000
Email: xxxxx.x.xxxxxxx@xxxxxxxxxxxxx.xxx
CITIBANK, N.A. $125,000,000
0 Xxxxx Xxx
Xxx Xxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Phone: (000)000-0000
Fax: (000)000-0000
Email: xxxxxx.xxxx@xxxx.xxx
DEUTSCHE BANK AG NEW YORK BRANCH $ 90,000,000
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Phone: (000)000-0000
Fax: (000)000-0000
Email: Xxxxxxx.xxxxxxx@xx.xxx
A/72335952.4 70
CREDIT SUISSE, CAYMAN ISLANDS BRANCH $ 50,000,000
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx
Phone: (000)000-0000
Fax: (000)000-0000
Email: xxx.xxxxx@xxxxxx-xxxxxx.xxx
THE BANK OF NEW YORK $ 50,000,000
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx XxXxxxxx, Vice President
Phone: (000)000-0000
Fax: (000)000-0000
Email: Xxxxxx.XXXxxxxx@xxxxxxxxx.xxx
UMB BANK, N.A. $ 25,000,000
0000 Xxxxx Xxxx.
Xxxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Senior Vice President
Phone: (000)000-0000
Fax: (000)000-0000
Email: xxxxx.xxxxxxxx@xxx.xxx
THE NORTHERN TRUST COMPANY $ 25,000,000
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx, Vice President
Phone: (000)000-0000
Fax: (000)000-0000
Email: xx00@xxxx.xxx
COMMERCE BANK, N.A. $ 10,000,000
0000 Xxxxxx
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Vice President
Phone: (000)000-0000
Fax: (000)000-0000
Email: xxxxxx.xxxx@xxxxxxxxxxxx.xxx
A/00000000.4 71
SCHEDULE III
CUSTODY AGREEMENTS
[To be provided by Borrowers]
A/72335952.4 72
SCHEDULE IV
DISTRIBUTION AGREEMENTS
[To be provided by Borrowers]
A/72335952.4 73
SCHEDULE V
INVESTMENT MANAGER AGREEMENTS
[To be provided by Borrowers]
A/72335952.4 74
SCHEDULE VI
SHAREHOLDER SERVICES AGREEMENTS
[To be provided by Borrowers]
A/72335952.4 75
SCHEDULE VII
SPECIFIED EXISTING AFFILIATES
A/72335952.4 76
EXHIBIT 2.7(E)
FORM OF NOTE
$ New York, New York
-----------------------
20
--------------, ---
FOR VALUE RECEIVED, each fund signatory hereto (each a "FUND" and
collectively, the "FUNDS") on behalf of itself or on behalf of each entity
listed beneath such fund's name on the signature page hereto, which entity is a
series or portfolio of such Fund (each such series or portfolio, a "BORROWER"
and, collectively, the "BORROWERS"), hereby severally and not jointly
unconditionally promises to pay to the order of __________________________, at
the office of Bank of America, N.A., as administrative agent for the Banks (the
"BANKS") under the Credit Agreement, as hereinafter defined (in such capacity,
the "ADMINISTRATIVE AGENT"), located at _____________________, 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. In addition, each Fund also agrees to pay on behalf of the
applicable Borrower the principal outstanding hereunder to such Borrower from
time to time at the times provided in the Credit Agreement.
Each of 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 Fund
on behalf of a 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 Credit Agreement,
dated as of December 12, 2007 (as amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"), among (i) each of 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
A/00000000.4 77
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.
Anything in this Note 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 SECTION
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.
If a Borrower is organized as a business trust (or a series thereof), the
parties acknowledge and agree that every note, bond, contract, instrument,
certificate or undertaking and every other act or thing whatsoever issued,
executed, or done by or on behalf of such Borrower by any trustee thereof in
connection with the Borrower shall be conclusively deemed to have been issued,
executed or done only in or with respect to his or her capacity as a trustee and
such trustee shall not be personally liable thereon. Neither such Borrower nor
any of its trustees, nor any officer, employee nor agent of such Borrower shall
have any power to bind personally any shareholders thereof, nor to call upon any
shareholder for the payment of any sum of money or assessment whatsoever other
than such as the shareholder may at any time personally agree to pay.
A/72335952.4 78
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK.
AMERICAN CENTURY MUTUAL
FUNDS, INC., ON BEHALF OF:
Balanced Fund
Capital Growth Fund
Capital Value Fund
Focused Growth Fund
Fundamental Equity Fund
Giftrust Fund
Growth Fund
Heritage Fund
New Opportunities Fund
New Opportunities II Fund
NT Vista Fund
NT Growth Fund
Select Fund
Ultra Fund
Veedot Fund
Vista Fund
Small Cap Growth Fund
Mid Cap Growth Fund
AMERICAN CENTURY WORLD
MUTUAL FUNDS, INC., ON BEHALF OF:
Emerging Markets Fund
Global Growth Fund
International Growth Fund
International Discovery Fund
International Stock Fund
International Opportunities Fund
International Value Fund
Life Sciences Fund
NT Emerging Markets Fund
NT International Growth Fund
Technology Fund
AMERICAN CENTURY CAPITAL
PORTFOLIOS, INC., ON BEHALF OF:
Equity Income Fund
Equity Index Fund
Large Company Value Fund
A/72335952.4 79
Mid Cap Value Fund
NT Large Company Value Fund
NT Mid Cap Value Fund
Real Estate Fund
Small Cap Value Fund
Value Fund
AMERICAN CENTURY STRATEGIC
ASSET ALLOCATIONS, INC., ON BEHALF OF:
Xxxxxx Fund
Strategic Allocation: Aggressive Fund
Strategic Allocation: Conservative Fund
Strategic Allocation: Moderate Fund
AMERICAN CENTURY VARIABLE
PORTFOLIOS, INC., on behalf of
VP Balanced Fund
VP Capital Appreciation Fund
VP Income & Growth Fund
VP International Fund
VP Large Company Value Fund
VP Mid Cap Value Fund
VP Ultra Fund
VP Value Fund
VP Vista Fund
AMERICAN CENTURY CALIFORNIA TAX-
FREE AND MUNICIPAL FUNDS,
ON BEHALF OF:
California High-Yield Municipal Fund
California Long-Term Tax-Free Fund
California Tax-Free Bond Fund
AMERICAN CENTURY MUNICIPAL
TRUST, on behalf of
High-Yield Municipal Fund
Tax-Free Bond Fund
Long Term Tax Free Fund
AMERICAN CENTURY TARGET
MATURITIES TRUST, on behalf of
Target Maturities Trust: 2010
Target Maturities Trust: 2015
Target Maturities Trust: 2020
Target Maturities Trust: 2025
A/72335952.4 80
AMERICAN CENTURY GOVERNMENT
INCOME TRUST, ON BEHALF OF:
Xxxxxx Mae Fund
Government Bond Fund
Inflation-Adjusted Bond Fund
Short-Term Government Fund
AMERICAN CENTURY QUANTITATIVE
EQUITY FUNDS, INC., ON BEHALF OF:
Disciplined Growth Fund
Equity Growth Fund
Global Growth Fund
Income & Growth Fund
International Core Equity Fund
Long/Short Equity Fund
NT Equity Growth Fund
NT Small Company Fund
Small Company Fund
Utilities Fund
AMERICAN CENTURTY INVESTMENT
TRUST, ON BEHALF OF:
Core Plus Fund
Diversified Bond Fund
High-Yield Bond Fund
High-Yield Fund
Inflation-Protection Bond Fund
NT Diversified Bond
Select Bond Fund
Short Duration Fund
AMERICAN CENTURY INTERNATIONAL
BOND FUNDS, ON BEHALF OF:
International Bond Fund
AMERICAN CENTURY VARIABLE
PORTFOLIOS II, INC., ON BEHALF OF:
VP Inflation Protection Fund
A/72335952.4 81
AMERICAN CENTURY GROWTH
FUNDS, INC., ON BEHALF OF:
Legacy Focused Large-Cap Fund
Legacy Large Cap Fund
Legacy Multi-Cap Fund
By: -----------------------
Name: Xxxxxx X. Xxxxx
Title: Fund Treasurer for each
of the above entities
A/72335952.4 82
SCHEDULE A TO NOTE
LOANS AND REPAYMENTS OF LOANS
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AMOUNT OF
PRINCIPAL OF UNPAID PRINCIPAL
DATE BORROWER AMOUNT OF LOANS LOANS REPAID BALANCE OF LOANS NOTATION MADE BY
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A/72335952.4 83
EXHIBIT 2.11(A)
FORM FOR DESIGNATION OF NEW BORROWERS
--------- --, ----
Bank of America, N.A., as Administrative Agent
[List Banks]
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of December
12, 2007 (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.
A/72335952.4
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:
BANK OF AMERICA, N.A.
as Administrative Agent
By:
---------------------------------------
Name:
Title:
[BANKS]
A/00000000.4 2
EXHIBIT 6.1(B)
FORM OF OPINION OF COUNSEL TO BORROWER
[To be Inserted]
A/72335952.4 3
EXHIBIT 11.6(C)
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to Credit Agreement, dated as of December 12, 2007 (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,
A/72335952.4 4
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.
A/72335952.4 5
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:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
----------------------------
Name:
Title:
THE FUNDS, each on behalf
of itself and NAME OF BORROWERS
By:
-----------------------------
Name:
Title:
A/72335952.4 6
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT
DATED AS OF DECEMBER 12, 2007,
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.
A/00000000.4 7
