Exhibit (9)(pp)
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______________________________________________________
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
THE LATIN AMERICA INVESTMENT FUND, INC.
THE LATIN AMERICA EQUITY FUND, INC.
THE CHILE FUND, INC.
THE BRAZILIAN EQUITY FUND, INC.
THE INDONESIA FUND, INC.
THE FIRST ISRAEL FUND, INC.
THE PORTUGAL FUND, INC.
THE EMERGING MARKETS TELECOMMUNICATIONS FUND, INC.
THE EMERGING MARKETS INFRASTRUCTURE FUND, INC.
THE RBB FUND, INC.
AND
THE FIRST NATIONAL BANK OF BOSTON
Dated as of December 15, 1994
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______________________________________________________
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 15, 1994, by
and among THE LATIN AMERICA INVESTMENT FUND, INC., a closed-end management
investment company incorporated under the laws of Maryland and registered under
the Investment Company Act of 1940, as amended (the "1940 ACT") (the "LA
INVESTMENT FUND"); THE LATIN AMERICA EQUITY FUND, INC., a closed-end management
investment company incorporated under the laws of Maryland and registered under
the 1940 Act (the "LA EQUITY FUND"); THE CHILE FUND, INC. , a closed-end
management investment company incorporated under the laws of Maryland and
registered under the 1940 Act (the "CHILE FUND"); THE BRAZILIAN EQUITY FUND,
INC., a closed-end management investment company incorporated under the laws of
Maryland and registered under the 1940 Act (the "BRAZILIAN EQUITY FUND"); THE
INDONESIA FUND, INC., a closed-end management investment company incorporated
under the laws of Maryland and registered under the 1940 Act (the "INDONESIA
FUND"); THE FIRST ISRAEL FUND, INC., a closed-end management investment company
incorporated under the laws of Maryland and registered under the 1940 Act (the
"FIRST ISRAEL FUND"); THE PORTUGAL FUND, INC., a closed-end management
investment company incorporated under the laws of Maryland and registered under
the 1940 Act (the "PORTUGAL FUND"); THE EMERGING MARKETS TELECOMMUNICATIONS
FUND, INC., a closed-end management investment company incorporated under the
laws of Maryland and registered under the 1940 Act (the "TELECOMMUNICATIONS
FUND"); THE EMERGING MARKETS INFRASTRUCTURE FUND, INC., a closed-end management
investment company incorporated under the laws of Maryland and registered under
the 1940 Act (the "INFRASTRUCTURE FUND"); and THE RBB FUND, INC., an open-end
management investment company incorporated under the laws of Maryland and
registered under the 1940 Act (the "RBB FUND"), acting on behalf of the
following portfolios (each a "PORTFOLIO" and collectively, the "PORTFOLIOS"):
BEA Emerging Markets Equity Portfolio, BEA Global Fixed Income Portfolio, BEA
International Equity Portfolio, BEA Municipal Bond Fund Portfolio, BEA Strategic
Fixed Income Portfolio, BEA U.S. Core Equity Portfolio, and BEA U.S. Core Fixed
Income Portfolio (each of the LA Investment Fund, the LA Equity Fund, the Chile
Fund, the Brazilian Equity Fund, the Portugal Fund, the First Israel Fund, the
Indonesia Fund, the Telecommunications Fund, the Infrastructure Fund and the RBB
Fund being herein sometimes referred to as a "BORROWER" and collectively, the
"BORROWERS") and THE FIRST NATIONAL BANK OF BOSTON, a national banking
association with its head office at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 (the "BANK").
WHEREAS, the Latin America Investment Fund, the Latin America Equity Fund,
the Chile Fund and the Brazilian Equity Fund (collectively, the "EXISTING
BORROWERS") and the Bank entered into a Credit Agreement dated as of December
31, 1993 (the "PRIOR AGREEMENT") providing for advances to be made by the Bank
to the Existing Borrowers for temporary or emergency purposes; and
WHEREAS, the Existing Borrowers and the Bank desire to amend and restate
the Prior Agreement to add the Portugal Fund, the First Israel Fund, the
Indonesia Fund, the Telecommunications Fund, the Infrastructure Fund and the RBB
Fund, acting on behalf of the Portfolios (collectively, the "NEW BORROWERS") as
Borrowers; and
WHEREAS, each of the Borrowers is authorized to borrow money for its own
temporary or emergency purposes, or the temporary or emergency purposes of the
Portfolios, and desires to enter into this Agreement so that it may borrow funds
from the Bank from time to time for such purposes; and
WHEREAS, the Bank is willing to advance funds to the Borrowers from time to
time on a demand, discretionary basis on the terms and subject to the conditions
set forth below;
NOW, THEREFORE, in consideration of the mutual promises and agreements of
the parties set forth herein, the parties hereto agree as follows:
Section 1. DEFINITIONS; INTERPRETATION.
Section 1.1. DEFINITIONS. As used herein, the following terms shall have
meanings assigned to them below:
ADJUSTED EURODOLLAR RATE. Applicable to any Interest Period, shall mean a
rate per annum determined pursuant to the following formula:
AER = [ LIBOR ]*
---------------
[ 1.00 - RP ]
AER = Adjusted Eurodollar Rate
LIBOR = London Interbank Offered Rate
RP = Reserve Percentage
*The amount in brackets shall be rounded upwards, if necessary, to the
next higher 1/100 of 1%.
Where:
"LONDON INTERBANK OFFERED RATE" applicable to any Eurodollar Loan for
any Interest Period means the rate of interest determined by the Bank to be
the prevailing rate per annum at which deposits in U.S. dollars are offered
to the Bank by first-class banks in the London interbank Eurodollar market
on or about 11:00 a.m. (London time) two Business Days before the first day
of such Interest Period in an amount approximately equal to the principal
amount of the Eurodollar Loan to which such Interest Period is to apply for
a period of time approximately equal to such Interest Period.
"RESERVE PERCENTAGE" applicable to any Interest Period means the rate
(expressed as a decimal) applicable to the Bank during such Interest Period
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System for determining the maximum reserve requirement
(including, without limitation, any basic, supplemental, emergency or
marginal reserve requirement) of the Bank with respect to "Eurocurrency
liabilities" as that term is defined under such regulations.
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The Adjusted Eurodollar Rate shall be adjusted automatically as of the effective
date of any change in the Reserve Percentage.
AFFECTED LOANS. As defined in Section 2.8(a).
AFFILIATED PERSON. As defined in the 1940 Act and the rules and
regulations promulgated thereunder.
AGREEMENT. This Amended and Restated Credit Agreement as originally
executed, or if amended or supplemented from time to time, as so amended or
supplemented. References to the Agreement shall mean and include references to
each of the Exhibits and Schedules hereto.
BANK. As defined in the preamble hereof.
BASE RATE. The greater of (i) the annual rate of interest announced from
time to time by the Bank at its Head Office as its "Base Rate", and (ii) the
Federal Funds Effective Rate plus 1/2 of 1% per annum (rounded upwards, if
necessary, to the next 1/8 of 1%).
BASE RATE LOAN. A Loan that bears interest at the Base Rate.
BORROWER and BORROWERS. As defined in the preamble hereof.
BORROWING DATE. The date on which any Loan is made or is to be made
hereunder.
BRAZILIAN EQUITY FUND. As defined in the preamble hereof.
BUSINESS DAY. (i) For all purposes other than as covered by clause (ii)
below, any day other than a Saturday, Sunday or legal holiday on which banks in
Boston, Massachusetts or New York, New York are open for the conduct of a
substantial part of their commercial banking business; and (ii) with respect to
all notices and determinations in connection with, and payments of principal and
interest on, Eurodollar Loans, any day that is a Business Day described in
clause (i) and that is also a day for trading by and between banks in U.S.
Dollar deposits in the London interbank Eurodollar market.
CHILE FUND. As defined in the preamble hereof.
CUSTODIAN. The entity that acts as a Borrower's custodian for purposes of
Section 17(f) of the 1940 Act or, if the RBB Fund has more than one custodian
for the assets of the Portfolios, the entity that acts as custodian for the
assets of each Portfolio.
DEFAULT. As defined in Section 6.1 hereof.
EURODOLLAR LOAN. Any Loan bearing interest at a rate determined with
reference to the Adjusted Eurodollar Rate.
EVENT OF DEFAULT. As defined in Section 6.1 hereof.
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EXISTING BORROWERS. As defined in the preamble hereof.
FEDERAL FUNDS EFFECTIVE RATE. For any day, a fluctuating interest rate per
annum equal to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal
Funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the Bank
from three Federal Funds brokers of recognized standing selected by the Bank.
FIRST ISRAEL FUND. As defined in the preamble hereof.
HEAD OFFICE. The head office of the Bank, which at present is located at
000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
INDEBTEDNESS. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as indebtedness, or to which reference should
be made by footnotes thereto, including, without limitation, in any event and
whether or not so classified: (i) all debt for money borrowed and similar
extensions of credit, whether direct or indirect; (ii) all liabilities secured
by any mortgage, pledge, security interest, lien, charge, or other encumbrance
existing on property owned or acquired subject thereto, whether or not the
liability secured thereby shall have been assumed; and (iii) all guaranties,
endorsements and other contingent obligations, whether direct or indirect, in
respect of Indebtedness of others, including any obligation to supply funds to
or in any manner to invest in, directly, or indirectly, the debtor, to purchase
Indebtedness, or to assure the owner of Indebtedness against loss, through an
agreement to purchase goods, supplies, or services for the purpose of enabling
the debtor to make payment of the Indebtedness held by such owner or otherwise,
and the obligations to reimburse the issuer of any letters of credit.
INDONESIA FUND. As defined in the preamble hereof.
INFRASTRUCTURE FUND. As defined in the preamble hereof.
INTEREST PERIOD. With respect to each Eurodollar Loan made to a Borrower,
the period commencing on the date of the making or continuation of or conversion
to such Eurodollar Loan and ending seven, 14 or 30 days thereafter, as such
Borrower may elect in the applicable Loan Request delivered pursuant to Section
2.2(a), or continuation notice delivered pursuant to Section 2.5(b); PROVIDED
that:
(i) any Interest Period (other than an Interest Period determined
pursuant to clause (iii) below) that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in the next calendar month, in which case
such Interest Period shall end on the immediately preceding Business Day;
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(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall,
subject to clause (iii) below, end on the last Business Day of a calendar
month;
(iii) any Interest Period that would otherwise end after the
Termination Date shall end on the Termination Date;
(iv) notwithstanding clause (iii) above, no Interest Period shall
have a duration of less than seven days; and if any Interest Period
applicable to such Loan would be for a shorter period, such Interest Period
shall not be available hereunder; and
(v) the Interest Period for any Eurodollar Loan made to any
Portfolio of the RBB Fund may not exceed seven days.
INVESTMENT ADVISER. BEA Associates, a New York general partnership.
LA EQUITY FUND. As defined in the preamble hereof.
LA INVESTMENT FUND. As defined in the preamble hereof.
LOAN or LOANS. As defined in Section 2.1 hereof.
LOAN ACCOUNT. As defined in Section 2.3 hereof.
LOAN REQUEST. As defined in Section 2.2(a) hereof.
MAXIMUM AMOUNT. With respect to each Borrower or, if applicable, each
Portfolio, and at the relevant time of reference thereto, an amount equal to the
lesser of the following:
(i) until the Termination Date, $50,000,000, or
(ii) at all times, and when added to all other indebtedness of such
Borrower incurred for itself or on behalf of such Portfolio, as applicable,
then outstanding, 25% of the value of the net assets of such Borrower or
such Portfolio at such time, or
(iii) the maximum amount such Borrower is permitted to borrow for
itself or on behalf of such Portfolio, as applicable, at such time under
(a) applicable federal or state laws, statutes and regulations, including
without limitation the asset coverage requirements of Xxxxxxx 00(x)(0) xx
xxx 0000 Xxx, (x) agreements (whether or not having the force of law) by
such Borrower for itself or on behalf of such Portfolio, as applicable,
with federal, state, local or foreign governmental agencies, authorities or
regulators, as more particularly described in Part 1 of SCHEDULE I hereto,
as amended and in effect from time to time, and (c) limitations on
borrowing adopted by such Borrower for itself or on behalf of such
Portfolio, as applicable, and described in its Registration Statement,
Prospectus or Statement of Additional
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Information, if applicable, or elsewhere, as more particularly described in
Part 2 of SCHEDULE I hereto, as amended and in effect from time to time.
Although it will be within the discretion of the Bank whether it makes Loans
under this Agreement, each Borrower understands that the Bank may use the
Maximum Amount as a ceiling on Loans.
NEW BORROWERS. As defined in the preamble hereof.
1940 ACT. As defined in the preamble hereof.
PORTFOLIO. As defined in the preamble hereof.
PORTUGAL FUND. As defined in the preamble hereof.
PRIOR AGREEMENT. As defined in the preamble hereof.
PROSPECTUS. With respect to the LA Investment Fund, such Borrower's
Prospectus dated September 20, 1994; with respect to the LA Equity Fund, such
Borrower's Prospectus dated September 20, 1994; with respect to the Chile Fund,
such Borrower's Prospectus dated July 7, 1993; respect to the Brazilian Equity
Fund, such Borrower's Prospectus dated April 3, 1992; with respect to the
Indonesia Fund, such Borrower's Prospectus dated March 1, 1990; with respect to
the First Israel Fund, such Borrower's Prospectus dated October 22, 1992; with
respect to the Portugal Fund, such Borrower's Prospectus dated November 1, 1989;
with respect to the Telecommunications Fund, such Borrower's Prospectus dated
June 17, 1992; with respect to the Infrastructure Fund, such Borrower's
Prospectus dated December 21, 1993; and with respect to the Portfolios, such
Portfolios' Prospectus or Prospectuses, each dated June 29, 1994.
RBB FUND. As defined in the preamble hereof.
REGISTRATION STATEMENT. The most recent Registration Statement on Form N-2
or Form N-1A, as applicable, filed by each Borrower with, and declared effective
by, the Securities and Exchange Commission and amended from time to time,
pursuant to the 1940 Act.
REGULATION U. Regulation U promulgated by the Board of Governors of the
Federal Reserve System, as in effect from time to time.
STATEMENT OF ADDITIONAL INFORMATION. The Statement of Additional
Information that must be provided by the LA Investment Fund, the LA Equity Fund
and the RBB Fund on behalf of the Portfolios to recipients of its or their
Prospectuses upon request, pursuant to the rules and regulations of the
Securities and Exchange Commission.
TELECOMMUNICATIONS FUND. As defined in the preamble hereof.
TERMINATION DATE. December 31, 1995, or such earlier date on which the
Bank in its discretion shall have terminated the credit facility provided for in
this Agreement and made demand for the repayment of all amounts then outstanding
hereunder.
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Section 1.2. INTERPRETATION. All terms of an accounting character not
specifically defined herein shall have the meanings assigned thereto by
generally accepted accounting principles in the United States of America, unless
the context otherwise requires. Each reference herein to a particular person or
entity (including, without limitation, the Bank) shall include a reference to
the successors and permitted assigns of such person or entity. The words
"herein", "hereof", "hereunder", and words of like import shall refer to this
Agreement as a whole and not to any particular Section or subdivision of this
Agreement.
Section 2. CREDIT FACILITY.
Section 2.1. CREDIT FACILITY. Subject to the terms and conditions set
forth in this Agreement, the Bank agrees to make revolving loans ("LOANS") to
each Borrower from time to time in the Bank's discretion on any Business Day
during the period from the date hereof to (but not including) the Termination
Date, as may be requested by any Borrower for itself or on behalf of a
Portfolio. Each Loan made by the Bank shall be in the principal amount stated
in the applicable Loan Request, and shall be in a minimum amount of at least
$1,000,000 and an integral multiple of $500,000 (or the balance of the
applicable unborrowed Maximum Amount), PROVIDED that at no time shall the
aggregate outstanding principal amount of all Loans made to any Borrower for its
own account or for the account of a Portfolio exceed the Maximum Amount
applicable to such Borrower or Portfolio; and PROVIDED, FURTHER that at no time
shall the aggregate outstanding principal amount of all Loans to all Borrowers
exceed $50,000,000. Within the limits of the provisions of this Section 2.1,
each Borrower may borrow, pay or prepay pursuant to Section 2.7 and reborrow
under this Section 2.1.
Section 2.2. NOTICE AND MANNER OF BORROWING. All Loans shall be requested
and funded in accordance with the procedures set forth below:
(a) LOAN REQUESTS. Each request by a Borrower for a Loan hereunder shall
be made by telephonic notice to the Bank (a "LOAN REQUEST") prior to 11:30 a.m.,
Boston time, on the Borrowing Date in the case of Base Rate Loans, and three
days prior to the Borrowing Date in the case of Eurodollar Loans. Each Loan
Request shall be irrevocable and shall state (i) the principal amount of the
requested Loan; (ii) the interest rate to be applicable thereto; (iii) in the
case of Eurodollar Loans; the Interest Period requested for such Loan (subject
to the definition of Interest Period); and (iv) in the case of Loans to the RBB
Fund, the Portfolio for which the Loan is being requested. Each Loan Request
shall also state the maximum amount such Borrower is then permitted to borrow
hereunder, for itself or on behalf of the relevant Portfolio, as applicable,
determined in accordance with the definition of Maximum Amount. Each Loan
Request shall be made by a duly authorized representative of such Borrower, as
specified by such Borrower in writing from time to time, and the Bank may rely
upon any telephone request that it reasonably believes is made by such a
representative. Each Loan Request shall promptly be followed by a written
confirmation thereof, substantially in the form of EXHIBIT A hereto, PROVIDED
that if such written confirmation differs in any material respect from the
action of the Bank taken in good faith reliance upon such telephone request, the
records of the Bank shall control absent manifest error.
Each Loan Request made by a Borrower shall constitute a representation and
warranty by such Borrower to the Bank that (i) the Loan requested thereby is
permitted under such Borrower's Prospectus, Registration Statement and, if
applicable, Statement of Additional Information; (ii) such
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Loan will not, when made, cause the aggregate outstanding principal amount of
all Loans of all Borrowers hereunder to exceed $50,000,000; (iii) the proceeds
of such Loan will be used by such Borrower for itself or on behalf of the
applicable Portfolio only in accordance with the provisions of Section 2.11
hereof; and (iv) all of the representations and warranties of such Borrower
contained in Section 4 hereof are true and correct on and as of the date of such
Loan Request and the date of such Loan as though made on and as of such dates.
(b) FUNDING THE LOANS. If, upon receipt of a Loan Request in accordance
with Section 2.2(a) hereof, the Bank is willing, in its discretion, to make a
Loan to the requesting Borrower for itself or on behalf of a Portfolio, the Bank
shall make such Loan by depositing or wiring the proceeds thereof, on the same
day in immediately available funds and at the applicable Borrower's expense, to
an account maintained on behalf of such Borrower or Portfolio by the Custodian
of such Borrower or Portfolio in accordance with the wiring instructions set
forth in SCHEDULE II hereto, as amended by such Borrower and in effect from time
to time.
Section 2.3. LOAN ACCOUNT. The Bank will maintain a separate account on
its books for each Borrower and each Portfolio (each a "LOAN ACCOUNT") on which
will be recorded, in accordance with the Bank's customary accounting practice,
(a) all Loans made by the Bank to such Borrower for its own account or for the
account of such Portfolio, (b) all payments on such Loans made by such Borrower
for its own account or for the account of such Portfolio to the Bank, and (c)
all other charges and expenses properly chargeable to such Borrower for its own
account or for the account of such Portfolio hereunder. The debit balance of
each Loan Account shall reflect the amount of the applicable Borrower's
indebtedness incurred for its own account or the account of its Portfolios from
time to time to the Bank hereunder and, in the absence of manifest error, shall
constitute conclusive evidence of the indebtedness of such Borrower incurred for
its own account or for the account of its Portfolios to the Bank hereunder.
Section 2.4. REPAYMENT OF LOANS. Each Loan made hereunder shall be
payable on demand or upon the termination of the credit facility provided
hereunder, as contemplated by Section 2.12; PROVIDED that if demand is not
earlier made, each Base Rate Loan shall mature and the principal amount thereof
become due and payable in full on the seventh day following the date of the
making of such Base Rate Loan, in the case of Loans to the Portfolios, and on
the Termination Date, in the case of Loans to all other Borrowers; and each
Eurodollar Loan shall mature and the principal amount thereof become due and
payable on the last day of the applicable Interest Period. Only the relevant
Borrower or the assets of the relevant Portfolio, as applicable, shall be liable
for the due and punctual payment of each such Loan made to such Borrower for its
own account or the account of such Portfolio, together with interest accrued
thereon and any other amounts payable with respect thereto.
Section 2.5. INTEREST.
(a) INTEREST RATE ON LOANS. Except as otherwise provided in Section
2.5(d) below, the outstanding principal amount of each Loan shall bear interest
until maturity at (i) the Base Rate, or (ii) the Adjusted Eurodollar Rate plus
1-1/2%, as selected by the applicable Borrower from time to time in its Loan
Request. Interest accrued on each Base Rate Loan shall be paid by the
applicable Borrower on the last day of each calendar quarter and upon demand by
the Bank for repayment of
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such Loan. Interest accrued on each Eurodollar Loan shall be paid on the last
day of the Interest Period applicable thereto and upon demand by the Bank for
repayment of such Loan.
(b) DURATION OF INTEREST PERIODS. Subject to the provisions of the
definition of Interest Period, the duration of each Interest Period applicable
to a Eurodollar Loan shall be as specified in the applicable Loan Request
delivered pursuant to Section 2.2(a). The applicable Borrower shall have the
option to elect a subsequent Interest Period to be applicable to such Loan by
giving notice of such election to the Bank received no later than 10:00 a.m.
Boston time three Business Days before the end of the then applicable Interest
Period.
If the Bank does not receive a notice of election of duration of an
Interest Period for a Eurodollar Loan within the applicable time limits
specified therein, or if, when such notice must be given, the Bank shall not
then be willing, in its sole discretion, to continue such Loan or a Default or
Event of Default then exists, the applicable Borrower shall be deemed to have
elected to convert such Loan in whole into a Base Rate Loan on the last day of
the then current Interest Period with respect thereto.
Notwithstanding the foregoing, no Borrower may select an Interest Period
that would end, but for the provisions of the definition of Interest Period,
after the Termination Date.
(c) OVERDUE PRINCIPAL AND INTEREST. Overdue principal and (to the extent
permitted by applicable law) interest on each Loan and all other overdue amounts
payable hereunder shall bear interest compounded monthly and payable on demand
at a rate per annum equal to two percent above the greater of (i) the interest
rate then in effect for such Loan and (ii) the Base Rate, until such amount
shall be paid in full (whether before or after judgment).
(d) LIMITATION ON INTEREST. No provision of this Agreement shall require
the payment or permit the collection of interest in excess of the rate then
permitted by applicable law.
Section 2.6. PLACE AND MODE OF PAYMENTS; COMPUTATIONS.
(a) Each payment made or caused to be made by a Borrower to the Bank under
this Agreement shall be made directly to the Bank in United States Dollars at
the Bank's Head Office ABA #000-000-000 Attention: Xxxxxxx Xxxxxxxx, Commercial
Loan Services, not later than 2:00 p.m., Boston time, on the due date of each
such payment, and in immediately available and freely transferable funds.
(b) If any sum would, but for the provisions of this subsection (b),
become due and payable to the Bank by any Borrower on any day that is not a
Business Day, then such sum shall become due and payable on the next succeeding
Business Day, and interest payable to the Bank under this Agreement shall be
adjusted by the Bank accordingly.
(c) All computations of interest and fees hereunder shall be made by the
Bank on the basis of a 360-day year and paid for the actual number of days
elapsed.
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(d) The Bank will determine the Base Rate in effect from time to time.
Any change in the Base Rate shall, for all purposes of this Agreement, become
effective on, and from the beginning of, the day on which such change shall
first be announced or determined by the Bank in accordance with the Bank's
customary banking practices.
(e) Each payment by a Borrower under this Agreement shall be made without
set-off or counterclaim and free and clear of and without deduction or
withholding of any kind.
Section 2.7. OPTIONAL PREPAYMENTS; CERTAIN MANDATORY PREPAYMENTS.
(a) Each Borrower shall have the right at any time to repay any Base Rate
Loans, in whole or in part, upon telephonic notice to the Bank of its intention
to repay such Loan prior to 12:00 noon, Boston time, on the date such prepayment
is to be made; PROVIDED, HOWEVER, that each such prepayment (except a prepayment
in full) shall be made in an amount of $100,000 or an integral multiple thereof.
Except as otherwise provided herein, Eurodollar Loans may only be prepaid on the
last day of the applicable Interest Period.
(b) If at any time the aggregate unpaid principal amount of all Loans to
all Borrowers exceeds $50,000,000, the Borrower that caused such excess agrees
to immediately prepay the amount of such excess, together with any amounts
payable pursuant to Section 2.10 hereof.
(c) If at any time the aggregate unpaid principal amount of Loans made to
any Borrower for its own account or for the account of a Portfolio shall exceed
the Maximum Amount applicable to such Borrower or Portfolio, such Borrower
agrees to immediately prepay the amount of such excess, together with any
amounts payable pursuant to Section 2.10 hereof.
(d) Upon each repayment or prepayment of any principal of any Loan
pursuant to any of the provisions of this Agreement, the applicable Borrower
hereby absolutely and unconditionally promises, for itself or on behalf of the
relevant Portfolio, to pay to the Bank, and there shall become absolutely due
and payable on the date of each such repayment or prepayment, all of the unpaid
interest accrued to such date on the amount of the principal of the Loans being
repaid or prepaid by such Borrower on such date. Whenever any interest on and
any principal of the Loans are paid simultaneously hereunder, the whole amount
paid shall be applied first to interest then due and payable.
2.8. CHANGED CIRCUMSTANCES.
(a) In the event that:
(i) on any date on which the Adjusted Eurodollar Rate would
otherwise be set the Bank shall have determined in good faith (which
determination shall be final and conclusive) that adequate and fair means
do not exist for ascertaining the London Interbank Offered Rate, or
(ii) at any time the Bank shall have determined in good faith (which
determination shall be final and conclusive) that:
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(A) the making or continuation of or conversion of any Loan to a
Eurodollar Loan has been made impracticable or unlawful by (1) the
occurrence of a contingency that materially and adversely affects the
London interbank Eurodollar market or (2) compliance by the Bank in good
faith with any applicable law or governmental regulation, guideline or
order or interpretation or change thereof by any governmental authority
charged with the interpretation or administration thereof or with any
request or directive of any such governmental authority (whether or not
having the force of law); or
(B) the Adjusted Eurodollar Rate shall no longer represent the
effective cost to the Bank for U.S. dollar deposits in the London interbank
market;
then, and in any such event, the Bank shall forthwith so notify each Borrower
thereof. Until the Bank notifies a Borrower that the circumstances giving rise
to such notice no longer apply, the obligation of the Bank to allow selection by
such Borrower of the type of Loan affected by the contingencies described in
this Section 2.8(a) (herein called "AFFECTED LOANS") shall be suspended. If at
the time the Bank so notifies each Borrower, a Borrower has previously given the
Bank a Loan Request with respect to one or more Affected Loans but such Loans
have not yet gone into effect, such Loan Request shall be deemed to be void and,
if the Bank in its discretion continues to be willing to lend to such Borrower,
such Borrower may borrow Loans of a non-affected type by delivering a substitute
Loan Request pursuant to Section 2.2(a) hereof.
Upon such date as shall be specified in such notice (which shall not be
earlier than the date such notice is given) each Borrower shall, with respect to
the outstanding Affected Loans made to it, prepay the same, together with
interest thereon and any amounts required to be paid pursuant to Section 2.10,
and may borrow Loans of another type in accordance with Section 2.1 hereof by
delivering substitute Loan Requests pursuant to Section 2.2(a) hereof.
(b) In case any change in law, regulation, treaty or official directive or
the interpretation or application thereof by any court or by any governmental
authority charged with the administration thereof or the compliance with any
guideline or request of any central bank or other governmental authority
(whether or not having the force of law):
(i) subjects the Bank to any tax with respect to payments of
principal or interest or any other amounts payable hereunder by any
Borrower or otherwise with respect to the transactions contemplated hereby
(except for taxes on the overall net income of the Bank imposed by the
United States of America or any political subdivision thereof), or
(ii) imposes, modifies or deems applicable any deposit insurance,
reserve, special deposit or similar requirement against assets held by, or
deposits in or for the account of, or loans by, the Bank (other than such
requirements as are already included in the determination of the Adjusted
Eurodollar Rate), or
(iii) imposes upon the Bank any other condition with respect to its
performance under this Agreement,
11
and the result of any of the foregoing is to increase the cost to the Bank,
reduce the income receivable by the Bank or impose any expense upon the Bank
with respect to any Loans, the Bank shall notify each Borrower thereof. To the
extent such cost, reduction or expense is attributable to any specific Loan or
Loans, the applicable Borrower(s) agree(s) to pay to the Bank the amount of such
increase in cost, reduction in income or additional expense attributable to such
Loan or Loans as and when such cost, reduction or expense is incurred or
determined, upon presentation by the Bank of a statement in the amount and
setting forth the Bank's calculation thereof, which statement shall be deemed
true and correct absent manifest error. To the extent such cost, reduction or
expense is not so attributable to any Loan or Loans, each Borrower, for itself
or on behalf of the Portfolios, as applicable, agrees to pay to the Bank, in the
proportion that the average amount of Loans outstanding made to such Borrower
for its own account or for the account of each Portfolio during the preceding
12-month period (or such shorter period that this Agreement shall have been
effective) bears to the average amount of all Loans outstanding to all Borrowers
during such period (or, if no Loans shall have been outstanding, 10% of such
amount), the amount of such increase in cost, reduction in income or additional
expense, determined and paid as aforesaid.
Section 2.9. INCREASED CAPITAL REQUIREMENTS. If any law or any
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) or the interpretation thereof by a court or
governmental authority with appropriate jurisdiction affects the amount of
capital required to be maintained by the Bank or any corporation controlling the
Bank and the Bank determines that the amount of capital required is increased by
or based upon the existence of the credit facilities established hereunder or
any Loans made pursuant hereto, and such increase has or would have the effect
of reducing the return on the Bank's equity to a level below that which the Bank
could have achieved (taking into consideration the Bank's then existing policies
with respect to capital adequacy and assuming the full utilization of the Bank's
capital) but for such law, rule, regulation, policy, guideline or directive,
then the Bank shall notify each Borrower in writing of such fact. To the extent
such reduction is attributable to any specific Loan or Loans, the applicable
Borrower(s) agree(s) to pay to the Bank the amount of such reduction
attributable to such Loan or Loans as and when such reduction is determined,
upon presentation by the Bank of a statement in the amount and setting forth the
Bank's calculation thereof, which statement shall be deemed true and correct
absent manifest error. To the extent such reduction is not so attributable to
any Loan or Loans, each Borrower agrees to pay, in the proportion that the
average amount of Loans outstanding made to such Borrower for its own account or
for the account of each Portfolio, as applicable, during the preceding 12-month
period (or such shorter period that this Agreement shall have been effective)
bears to the average amount of all Loans outstanding to all Borrowers during
such period (or, if no Loans shall have been be outstanding, 10% of such
amount), the amount of such reduction, determined and paid as aforesaid. In
determining such amount, the Bank may use any reasonable averaging and
attribution methods. In this connection, the Bank shall allocate such costs
among its customers in good faith and on an equitable basis.
Section 2.10. FUNDING LOSSES. If a Borrower for any reason makes any
payment of principal with respect to a Eurodollar Loan on any date other than
the scheduled maturity thereof, or fails to borrow or continue a Eurodollar Loan
after giving a Loan Request or continuation notice therefor, such Borrower shall
reimburse the Bank for any resulting loss or expense incurred by it, including
without limitation any loss reasonably incurred in obtaining, liquidating or
employing of deposits from third parties. Such Borrower shall pay the amount of
such loss or expense upon presentation of
12
a statement in the amount thereof and setting forth the Bank's calculation
thereof, which statement shall be deemed true and correct absent manifest error.
Section 2.11. USE OF PROCEEDS. The proceeds of each Loan hereunder shall
be used by the applicable Borrower to meet requests for funds from such Borrower
for itself or on behalf of a Portfolio of such Borrower for temporary or
emergency purposes, as specified in such Borrower's Prospectus. No portion of
any Loan made to the Brazilian Equity Fund, the Chile Fund, the First Israel
Fund, the Indonesia Fund, the Infrastructure Fund, the LA Equity Fund, the LA
Investment Fund, the Portugal Fund and the Telecommunications Fund is to be used
for the "purpose of purchasing or carrying" any "margin stock" as such terms are
used in Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. 221 and 224, as amended. Proceeds for any Loan made to a
Portfolio of the RBB Fund shall be used by such Portfolio solely to effect
redemptions to shareholders during the period in which such Portfolio is
awaiting receipt of settlement money from the sale of assets made to cover
requests for redemptions.
Section 2.12. DISCRETIONARY DEMAND FACILITY. It is acknowledged and
agreed by each Borrower that the Bank has no obligation to make any Loan
hereunder, and that the decision whether or not to make any Loan requested by
any Borrower is within the sole and exclusive discretion of the Bank. The Bank
may terminate the credit facilities provided for herein either in whole or in
part with respect to one or more or more Borrowers at any time by written notice
to the affected Borrower(s).
Section 3. CONDITIONS PRECEDENT.
Section 3.1. CONDITIONS OF CLOSING. This Agreement shall become effective
upon the receipt by the Bank of the following:
(a) executed original counterparts of this Agreement, signed by the Bank
and each Borrower;
(b) certified copies of the charter documents and bylaws of each New
Borrower, and certified copies of any amendments executed since December 31,
1993 to the charter documents and bylaws of each Existing Borrower;
(c) certified copies of all documents relating to the due authorization
and execution by each Borrower of this Agreement as the Bank may reasonably
request, including, without limitation, all votes of the Board of Directors of
such Borrower authorizing (i) the execution and delivery by such Borrower of
this Agreement, (ii) its performance of all of its agreements and obligations
under this Agreement, and (iii) the borrowings and other transactions
contemplated by this Agreement;
(d) an incumbency certificate, dated the date hereof, signed by the
Secretary or Assistant Secretary of each Borrower setting forth the names and
specimen signatures of each individual authorized to give notices, sign or act
on behalf of such Borrower in connection with the transactions contemplated by
this Agreement;
(e) an opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, counsel to the RBB
Fund, an opinion of Skadden, Arps, Slate, Xxxxxxx and Xxxx, counsel to the First
Israel Fund and an opinion
13
from Xxxxxxx Xxxx & Xxxxxxxxx, counsel to the remaining Borrowers, substantially
in the form of EXHIBITS X-0, X-0 and B-3, respectively; and
(f) such other documents as the Bank shall have requested in order to
comply with applicable rules and regulations promulgated by the Federal Reserve
Board and other governmental and regulatory authorities.
Section 3.2. CONDITIONS OF LOANS. The willingness of the Bank in its
discretion to make any Loan to a Borrower for its own account or for the account
of a Portfolio on a Borrowing Date shall be subject to the satisfaction, at or
before the time each such Loan is made, of each of the following conditions
precedent (unless and to the extent that satisfaction of such conditions
precedent or any of them is waived pursuant to Section 16 hereof):
(a) the Bank shall have received a Loan Request from the applicable
Borrower for itself or on behalf of a Portfolio, as required by Section 2.2(a);
(b) the representations and warranties contained in Section 4 of this
Agreement and otherwise made by or on behalf of or with respect to such Borrower
in connection with the transactions contemplated by this Agreement shall (except
to the extent that such representations and warranties relate expressly to a
specific date, and except to the extent of changes resulting from the
transactions contemplated or permitted by this Agreement and changes occurring
in the ordinary course of business that, singly or in the aggregate, do not
materially adversely affect such Borrower or such Portfolio or its business,
assets, operations, prospects or its condition (financial or otherwise)), be
true and correct at and as of such Borrowing Date;
(c) there shall exist no Default or Event of Default upon the making of
such Loan;
(d) the Bank shall be satisfied that there has been no material adverse
change (i) in the business, assets, operations, prospects or condition
(financial or otherwise) of such Borrower or Portfolio since the date of the
most recent financial statements of such Borrower or Portfolio referred to in
Section 4.9, or (ii) in the political or economic conditions prevailing in the
countries of origin of the issuers of the portfolio securities of such Borrower
or Portfolio; and
(e) the making of such Loan shall not contravene any law, regulation,
decree or order binding on such Borrower or the Bank, and the Bank shall have
received all such certificates and documents in relation thereto as the Bank or
the Bank's counsel shall have reasonably requested.
Section 4. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers
represents and warrants to the Bank that:
Section 4.1. ORGANIZATION, QUALIFICATION, ETC. Such Borrower is duly
organized and validly existing as a corporation under the laws of its
jurisdiction of incorporation and each Borrower and each Portfolio is duly
qualified to do business in each other jurisdiction wherein the nature of its
properties or its business requires such qualification and in which the failure
to be so qualified could materially adversely affect the business, assets or
condition (financial or otherwise) of such Borrower or Portfolio.
14
Section 4.2. REGISTRATION UNDER APPLICABLE LAW. Such Borrower is
registered as a closed-end management investment company under the 1940 Act or,
in the case of the RBB Fund, such Borrower is registered as a open-end
management investment company under the 1940 Act.
Section 4.3. AUTHORIZATION, ETC. The execution, delivery and performance
by such Borrower of this Agreement are within the powers of such Borrower, have
been duly authorized by all necessary and proper action on the part of such
Borrower, and do not and will not (i) violate or contravene any provision of
such Borrower's charter documents or bylaws, or any amendment thereof; (ii)
violate or contravene any provision of such Borrower's Prospectus, Registration
Statement or Statement of Additional Information, if applicable; (iii) conflict
with, or result in a breach of any material term, condition or provision of, or
constitute a default under or result in the creation of any mortgage, lien,
pledge, charge, security interest or other encumbrance upon any of the property
or assets of such Borrower under, any agreement, trust deed, indenture, mortgage
or other instrument to which such Borrower is a party or by which such Borrower
or any of its property or assets is bound or affected; or (iv) violate or
contravene any provision of any material law, regulation, order, ruling or
interpretation thereunder or any decree, order or judgment of any court or
governmental or regulatory authority, bureau, agency or official.
Section 4.4. BINDING EFFECT OF AGREEMENT, ETC. This Agreement and all the
provisions hereof constitute the legally valid and binding obligations of such
Borrower enforceable against such Borrower in accordance with their terms,
except as enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement of
creditors' rights and except to the extent that the availability of equitable
remedies is subject to the discretion of the court before which any proceeding
therefor may be brought.
Section 4.5. APPROVALS, ETC. No authorization, approval, consent or other
action by, and no notice to or filing with, any shareholder or creditor of such
Borrower, or governmental or regulatory agency or authority having jurisdiction
over such Borrower, is required to make valid and legally binding the execution,
delivery and performance by such Borrower of this Agreement or the consummation
by such Borrower of the transactions contemplated hereby, or the exercise by the
Bank of its rights and remedies hereunder.
Section 4.6. COMPLIANCE WITH OTHER INSTRUMENTS. Such Borrower is in
compliance with all investment policies and restrictions applicable to it or to
its Portfolios identified in its Prospectus, Registration Statement and
Statement of Additional Information, if applicable, and is in compliance with
all investment policies and restrictions applicable to it or its Portfolios
under Section 8(b), Section 13 and all other provisions of the 1940 Act. Such
Borrower is not in violation of any material provision of its charter documents
or bylaws, or any amendment thereof, or in default under any material indenture
or agreement to which it is a party or by which it or any of its property or
assets is bound, or in violation of any material applicable laws or orders,
regulations, rulings, decrees or requirements of any court or governmental or
regulatory agency or authority by which it or any of its property or assets is
bound, which default or violation could have a material adverse effect on the
business, assets, operations, prospects or condition (financial or otherwise) of
such Borrower or the Portfolios of such Borrower.
15
Section 4.7. LITIGATION. There are no pending or, to the best knowledge
of such Borrower, threatened actions, suits, investigations or proceedings at
law or in equity before any federal, state, local or foreign court, governmental
or regulatory authority, agency, commission, board, bureau or instrumentality,
or board of arbitration, against or affecting such Borrower or its right, title
and interest in or to any of its properties or assets.
Section 4.8. TAXES. Such Borrower has made or filed all federal, state,
local, foreign and other tax returns, reports and declarations required by any
jurisdiction to which such Borrower is subject, and has paid all taxes and other
assessments and charges shown or determined to be due on such returns, reports
and declarations or pursuant to any matters raised by audits or for other
reasons known to it, except those being contested in good faith by appropriate
proceedings and as to which there have been set aside reserves adequate with
respect to such tax, assessment or charge so contested. Such Borrower has set
aside on its books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes claimed to be due by the taxing
authority of any jurisdiction, and such Borrower knows of no basis for any such
claim.
Section 4.9. FINANCIAL STATEMENTS; NO MATERIAL CHANGES.
(a) The Annual Report of the LA Investment Fund as of December 31, 1993,
setting forth the Schedule of Investments and the Statement of Assets and
Liabilities of the LA Investment Fund as of the date of such Report, and the
Statements of Operations and Changes in Net Assets of the LA Investment Fund for
the period then ended, certified by Coopers & Xxxxxxx, and the Semi-Annual
Report of the LA Investment Fund as of June 30, 1994, setting forth the Schedule
of Investments and the Statement of Assets and Liabilities of the LA Investment
Fund as of the date of such Report and the Statements of Operations and Changes
in Net Assets of the LA Investment Fund as of the date of such report, certified
by management of the Investment Adviser, copies of each of which have been
furnished to the Bank, are complete and correct in all material respects; and
said Annual Report and Semi-Annual Report fairly present the financial condition
of the LA Investment Fund as of their respective dates and the results of the
operations of the LA Investment Fund for the periods ended on such dates, all in
accordance with generally accepted accounting principles applied on a consistent
basis. Since December 31, 1993 there have been no changes in the assets,
liabilities, business, condition (financial or otherwise) or results of
operations of the LA Investment Fund, that have been, in any case or in the
aggregate, materially adverse.
(b) The Annual Report of the LA Equity Fund as of December 31, 1993,
setting forth the Schedule of Investments and the Statement of Assets and
Liabilities of the LA Equity Fund as of the date of such Report, and the
Statements of Operations and Changes in Net Assets of the LA Equity Fund for the
period then ended, certified by Coopers & Xxxxxxx, and the Semi-Annual Report of
the LA Equity Fund as of June 30, 1994, setting forth the Schedule of
Investments and the Statement of Assets and Liabilities of the LA Equity Fund as
of the date of such Report and the Statements of Operations and Changes in Net
Assets of the LA Equity Fund as of the date of such report, certified by
management of the Investment Adviser, copies of each of which have been
furnished to the Bank, are complete and correct in all material respects; and
said Annual Report and Semi-Annual Report fairly present the financial condition
of the LA Equity Fund as of their respective dates and the results
16
of the operations of the LA Equity Fund for the periods ended on such dates, all
in accordance with generally accepted accounting principles applied on a
consistent basis. Since December 31, 1993 there have been no changes in the
assets, liabilities, business, condition (financial or otherwise) or results of
operations of the LA Equity Fund, that have been, in any case or in the
aggregate, materially adverse.
(c) The Annual Report of the Chile Fund as of December 31, 1993, setting
forth the Schedule of Investments and the Statement of Assets and Liabilities of
the Chile Fund as of the date of such Report, and the Statements of Operations
and Changes in Net Assets of the Chile Fund for the period then ended, certified
by Coopers & Xxxxxxx, and the Semi-Annual Report of the Chile Fund as of June
30, 1994, setting forth the Schedule of Investments and the Statement of Assets
and Liabilities of the Chile Fund as of the date of such Report and the
Statements of Operations and Changes in Net Assets of the Chile Fund as of the
date of such report, certified by management of the Investment Adviser, copies
of each of which have been furnished to the Bank, are complete and correct in
all material respects; and said Annual Report and Semi-Annual Report fairly
present the financial condition of the Chile Fund as of their respective dates
and the results of the operations of the Chile Fund for the periods ended on
such dates, all in accordance with generally accepted accounting principles
applied on a consistent basis. Since December 31, 1993 there have been no
changes in the assets, liabilities, business, condition (financial or otherwise)
or results of operations of the Chile Fund, that have been, in any case or in
the aggregate, materially adverse.
(d) The Annual Report of the Brazilian Equity Fund as of March 31, 1994,
setting forth the Schedule of Investments and the Statement of Assets and
Liabilities of the Brazilian Equity Fund as of the date of such Report, and the
Statements of Operations and Changes in Net Assets of the Brazilian Equity Fund
for the period then ended, certified by Coopers & Xxxxxxx, copies of each of
which have been furnished to the Bank, are complete and correct in all material
respects; and said Annual Report fairly presents the financial condition of the
Brazilian Equity Fund as of its date and the results of the operations of the
Brazilian Equity Fund for the period ended on such date, all in accordance with
generally accepted accounting principles applied on a consistent basis. Since
March 31, 1994 there have been no changes in the assets, liabilities, business,
condition (financial or otherwise) or results of operations of the Brazilian
Equity Fund, that have been, in any case or in the aggregate, materially
adverse.
(e) The Annual Report of the Indonesia Fund as of December 31, 1993,
setting forth the Schedule of Investments and the Statement of Assets and
Liabilities of the Indonesia Fund as of the date of such Report, and the
Statements of Operations and Changes in Net Assets of the Indonesia Fund for the
period then ended, certified by Coopers & Xxxxxxx, and the Semi-Annual Report of
the Indonesia Fund as of June 30, 1994, setting forth the Schedule of
Investments and the Statement of Assets and Liabilities of the Indonesia Fund as
of the date of such Report and the Statements of Operations and Changes in Net
Assets of the Indonesia Fund as of the date of such report, certified by
management of the Investment Adviser, copies of each of which have been
furnished to the Bank, are complete and correct in all material respects; and
said Annual Report and Semi-Annual Report fairly present the financial condition
of the Indonesia Fund as of their respective dates and the results of the
operations of the Indonesia Fund for the periods ended on such dates, all in
accordance with generally accepted accounting principles applied on a consistent
basis. Since December 31, 1993 there have been no changes in the assets,
liabilities, business, condition (financial or otherwise) or
17
results of operations of the Indonesia Fund, that have been, in any case or in
the aggregate, materially adverse.
(f) The Annual Report of the First Israel Fund as of September 30, 1993,
setting forth the Schedule of Investments and the Statement of Assets and
Liabilities of the Indonesia Fund as of the date of such Report, and the
Statements of Operations and Changes in Net Assets of the First Israel Fund for
the period then ended, certified by Coopers & Xxxxxxx, and the Semi-Annual
Report of the First Israel Fund as of March 31, 1994, setting forth the Schedule
of Investments and the Statement of Assets and Liabilities of the First Israel
Fund as of the date of such Report and the Statements of Operations and Changes
in Net Assets of the First Israel Fund as of the date of such report, certified
by management of the Investment Adviser, copies of each of which have been
furnished to the Bank, are complete and correct in all material respects; and
said Annual Report and Semi-Annual Report fairly present the financial condition
of the First Israel Fund as of their respective dates and the results of the
operations of the First Israel Fund for the periods ended on such dates, all in
accordance with generally accepted accounting principles applied on a consistent
basis. Since September 30, 1993 there have been no changes in the assets,
liabilities, business, condition (financial or otherwise) or results of
operations of the First Israel Fund, that have been, in any case or in the
aggregate, materially adverse.
(g) The Annual Report of the Portugal Fund as of December 31, 1993,
setting forth the Schedule of Investments and the Statement of Assets and
Liabilities of the Portugal Fund as of the date of such Report, and the
Statements of Operations and Changes in Net Assets of the Portugal Fund for the
period then ended, certified by Coopers & Xxxxxxx, and the Semi-Annual Report of
the Portugal Fund as of June 30, 1994, setting forth the Schedule of Investments
and the Statement of Assets and Liabilities of the Portugal Fund as of the date
of such Report and the Statements of Operations and Changes in Net Assets of the
Portugal Fund as of the date of such report, certified by management of the
Investment Adviser, copies of each of which have been furnished to the Bank, are
complete and correct in all material respects; and said Annual Report and Semi-
Annual Report fairly present the financial condition of the Portugal Fund as of
their respective dates and the results of the operations of the Portugal Fund
for the periods ended on such dates, all in accordance with generally accepted
accounting principles applied on a consistent basis. Since December 31, 1993
there have been no changes in the assets, liabilities, business, condition
(financial or otherwise) or results of operations of the Portugal Fund, that
have been, in any case or in the aggregate, materially adverse.
(h) The Annual Report of the Telecommunications Fund as of May 31, 1994,
setting forth the Schedule of Investments and the Statement of Assets and
Liabilities of the Telecommunications Fund as of the date of such Report, and
the Statements of Operations and Changes in Net Assets of the Telecommunications
Fund for the period then ended, certified by Coopers & Xxxxxxx, copies of which
have been furnished to the Bank, is complete and correct in all material
respects; and said Annual Report fairly presents the financial condition of the
Telecommunications Fund as of its date and the results of the operations of the
Telecommunications Fund for the period ended on such date, all in accordance
with generally accepted accounting principles applied on a consistent basis.
Since May 31, 1994 there have been no changes in the assets, liabilities,
business, condition (financial or otherwise) or results of operations of the
Telecommunications Fund, that have been, in any case or in the aggregate,
materially adverse.
18
(i) The Semi-Annual Report of the Infrastructure Fund as of May 31, 1994,
setting forth the Schedule of Investments and the Statement of Assets and
Liabilities of the Infrastructure Fund as of the date of such Report and the
Statements of Operations and Changes in Net Assets of the Infrastructure Fund as
of the date of such report, certified by management of the Investment Adviser,
copies of which have been furnished to the Bank, are complete and correct in all
material respects; and said Semi-Annual Report fairly presents the financial
condition of the Infrastructure Fund as of its date and the results of the
operations of the Infrastructure Fund for the period ended on such date, all in
accordance with generally accepted accounting principles applied on a consistent
basis. Since May 31, 1994 there have been no changes in the assets,
liabilities, business, condition (financial or otherwise) or results of
operations of the Infrastructure Fund, that have been, in any case or in the
aggregate, materially adverse.
(j) The Annual Report of the BEA International Equity Portfolio and BEA
Emerging Markets Equity Portfolio as of August 31, 1994, setting forth the
Schedule of Investments and the Statement of Assets and Liabilities of the BEA
International Equity Portfolio and BEA Emerging Markets Equity Portfolio as of
the date of such Report, and the Statements of Operations and Changes in Net
Assets of the BEA International Equity Portfolio and BEA Emerging Markets Equity
Portfolio for the period then ended, certified by Coopers & Xxxxxxx, copies of
which have been furnished to the Bank, are complete and correct in all material
respects; and said Annual Report fairly presents the financial condition of the
BEA International Equity Portfolio and BEA Emerging Markets Equity Portfolio as
of their respective dates and the results of the operations of the BEA
International Equity Portfolio and BEA Emerging Markets Equity Portfolio for the
period ended on such date, all in accordance with generally accepted accounting
principles applied on a consistent basis. Since August 31, 1994 there have been
no changes in the assets, liabilities, business, condition (financial or
otherwise) or results of operations of the BEA International Equity Portfolio
and BEA Emerging Markets Equity Portfolio, that have been, in any case or in the
aggregate, materially adverse.
(k) The Schedule of Investments of the BEA Global Fixed Income Portfolio
as of August 31, 1994, setting forth the Schedule of Investments of the BEA
Global Fixed Income Portfolio as of the date of such Report, certified by
Coopers & Xxxxxxx, copies of which have been furnished to the Bank, is complete
and correct in all material respects; and said Schedule of Investments fairly
presents the investment portfolio of the BEA Global Fixed Income Portfolio as of
its date in accordance with generally accepted accounting principles applied on
a consistent basis. Since August 31, 1994 there have been no changes in the
assets, liabilities, business, condition (financial or otherwise) or results of
operations of the BEA Global Fixed Income Portfolio, that have been, in any case
or in the aggregate, materially adverse.
(l) The Schedule of Investments of the BEA Municipal Bond Fund Portfolio
as of August 31, 1994, setting forth the Schedule of Investments of the BEA
Municipal Bond Fund Portfolio as of the date of such Report, certified by
Coopers & Xxxxxxx, copies of which have been furnished to the Bank, is complete
and correct in all material respects; and said Schedule of Investments fairly
presents the investment portfolio of the BEA Municipal Bond Fund Portfolio as of
its date in accordance with generally accepted accounting principles applied on
a consistent basis. Since August 31, 1994 there have been no changes in the
assets, liabilities, business, condition (financial or otherwise) or results of
operations of the BEA Municipal Bond Fund Portfolio, that have been, in any case
or in the aggregate, materially adverse.
19
(m) The Schedule of Investments of the BEA U.S. Core Equity Portfolio as
of August 31, 1994, setting forth the Schedule of Investments of the BEA U.S.
Core Equity Portfolio as of the date of such Report, certified by Coopers &
Xxxxxxx, copies of which have been furnished to the Bank, is complete and
correct in all material respects; and said Schedule of Investments fairly
presents the investment portfolio of the BEA U.S. Core Equity Portfolio as of
its date in accordance with generally accepted accounting principles applied on
a consistent basis. Since August 31, 1994 there have been no changes in the
assets, liabilities, business, condition (financial or otherwise) or results of
operations of the BEA U.S. Core Equity Portfolio, that have been, in any case or
in the aggregate, materially adverse.
(n) The Schedule of Investments of the BEA U.S. Core Fixed Income
Portfolio as of August 31, 1994, setting forth the Schedule of Investments of
the BEA U.S. Core Fixed Income Portfolio as of the date of such Report,
certified by Coopers & Xxxxxxx, copies of which have been furnished to the Bank,
is complete and correct in all material respects; and said Schedule of
Investments fairly presents the investment portfolio of the BEA U.S. Core Fixed
Income Portfolio as of its date in accordance with generally accepted accounting
principles applied on a consistent basis. Since August 31, 1994 there have been
no changes in the assets, liabilities, business, condition (financial or
otherwise) or results of operations of the BEA U.S. Core Fixed Income Portfolio,
that have been, in any case or in the aggregate, materially adverse.
(o) The Schedule of Investments of the BEA Strategic Fixed Income
Portfolio as of August 31, 1994, setting forth the Schedule of Investments of
the BEA Strategic Fixed Income Portfolio as of the date of such Report,
certified by Coopers & Xxxxxxx, copies of which have been furnished to the Bank,
is complete and correct in all material respects; and said Schedule of
Investments fairly presents the investment portfolio of the BEA Strategic Fixed
Income Portfolio as of its date in accordance with generally accepted accounting
principles applied on a consistent basis. Since August 31, 1994 there have been
no changes in the assets, liabilities, business, condition (financial or
otherwise) or results of operations of the BEA Strategic Fixed Income Portfolio,
that have been, in any case or in the aggregate, materially adverse.
Section 4.10. NO DEFAULTS. No Default or Event of Default has occurred
and is continuing.
Section 4.11. AFFILIATED PERSONS.
(a) So far as appears from the records of such Borrower, neither the Bank
nor, to the knowledge of such Borrower, any Affiliated Person of the Bank,
individually or in the aggregate, owns, controls or holds with the power to
vote, five percent or more of the outstanding voting securities of such
Borrower;
(b) neither such Borrower nor, to the knowledge of such Borrower, any
Affiliated Person of such Borrower, directly or indirectly, individually or in
the aggregate, owns, controls or holds with power to vote, five percent or more
of the outstanding voting securities of the Bank or, to the knowledge of such
Borrower, any Affiliated Person of the Bank;
(c) neither such Borrower nor, to the knowledge of such Borrower, any
Affiliated Person of such Borrower, directly or indirectly, individually or in
the aggregate, controls or, to the
20
knowledge of such Borrower, after due inquiry, is controlled by or under common
control with, the Bank or, to the knowledge of such Borrower, any Affiliated
Person of the Bank;
(d) no officer, director or employee of such Borrower or, to the knowledge
of such Borrower, any Affiliated Person of such Borrower is an Affiliated Person
of the Bank or, to the knowledge of such Borrower, any Affiliated Person of the
Bank;
(e) except as described in SCHEDULE III hereto, as amended and in effect
from time to time, such Borrower does not, directly or indirectly, own, control,
or hold with power to vote, ten percent or more of the outstanding voting
securities of any issuer; and
(f) except as described in SCHEDULE IV, as amended and in effect from time
to time, to the knowledge of such Borrower, no person, directly or indirectly,
owns, controls or holds with power to vote, five percent or more of the
outstanding voting securities of such Borrower.
Section 4.12. DISCLOSURE. Neither this Agreement nor any of the
information concerning such Borrower submitted to the Bank in connection
herewith contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained therein not
misleading in light of the circumstances in which they are made. Except as
disclosed herein or in the Prospectuses, Registration Statements or Statements
of Additional Information, there is no fact known to such Borrower that
materially adversely affects, or that, in the best judgment of the management of
such Borrower, could in the future materially adversely affect, the assets,
business, prospects, condition (financial or otherwise) or operations of such
Borrower.
Section 5. COVENANTS. Each Borrower covenants and agrees that, so long as
any amounts are owing with respect to the Loans or otherwise under this
Agreement, or if no such amount is owing, so long as the Bank shall, in its
discretion, be willing to make Loans hereunder as provided herein, it will
comply with the following covenants. EACH BORROWER ACKNOWLEDGES AND AGREES THAT
COMPLIANCE WITH THE FOLLOWING COVENANTS SHALL IN NO WAY COMPROMISE THE ABSOLUTE
DISCRETION OF THE BANK TO ADVANCE FUNDS UNDER THIS CREDIT FACILITY TO SUCH
BORROWER OR MAKE DEMAND AT ANY TIME FOR PAYMENT OF THE OBLIGATIONS OF SUCH
BORROWER TO THE BANK.
Section 5.1. USE OF PROCEEDS. Such Borrower shall use the proceeds of
Loans only for the purposes specified in Section 2.11.
Section 5.2. PUNCTUAL PAYMENT. Such Borrower will duly and punctually pay
or cause to be paid principal and interest and all other sums due from it under
this Agreement in accordance with the terms hereof.
Section 5.3. TAXES, ETC. Such Borrower (a) will file all federal, state,
local, foreign and other tax returns, reports and declarations required by any
jurisdiction to which such Borrower is subject on or before the due dates for
the returns, reports and declarations; and (b) will pay and discharge, before
the same shall become in arrears, all taxes, assessments and other governmental
charges shown or determined to be due on such returns, reports and declarations,
unless, and in any
21
such case, the same is being contested in good faith by appropriate proceedings
and an adequate reserve therefor has been established.
Section 5.4. COMPLIANCE WITH LAW, ETC. Such Borrower will comply in all
material respects with (i) all applicable federal, state and local laws, rules,
regulations and governmental or regulatory directives (whether or not having the
force of law), and all orders, writs, judgments, injunctions, decrees or awards
to which it may be subject; (ii) all of its investment policies and restrictions
set forth in its Prospectus, Registration Statement or Statement of Additional
Information, if applicable, or otherwise; and (iii) the provisions of its
charter documents and bylaws and all agreements and instruments by which it or
any of its property or assets may be affected or bound.
Section 5.5. COMPLIANCE WITH REGULATION U. Such Borrower will, at any
time and from time to time upon receipt of notice from the Bank, and at such
Borrower's expense, promptly execute and deliver or file all additional
instruments and documents, and take all further action, that may be necessary or
desirable, or that the Bank may reasonably request, in order to fully comply
with the requirements of Regulation U.
Section 5.6. NOTICE OF CERTAIN EVENTS. Such Borrower will give the Bank
prompt written notice of:
(a) any change in any federal, state or local law, rule or regulation or
governmental or regulatory directive (whether or not having the force of law)
materially adversely affecting such Borrower, or any of its property or assets,
or affecting such Borrower's ability to repay the Loans and comply with the
terms of this Agreement;
(b) any change in its agreements with governmental authorities or
regulators or its investment policies or restrictions that would make any of the
information set forth in SCHEDULE I hereto incorrect, incomplete or misleading
in any material respect, and will prepare and submit to the Bank for attachment
to this Agreement an amendment to SCHEDULE I reflecting such change;
(c) any change in its portfolio or in the ownership of its outstanding
voting securities that would make any of the information set forth in SCHEDULES
III and IV hereto incorrect or incomplete in any material respect, and will
prepare and submit to the Bank for attachment to this Agreement an amendment to
SCHEDULE III or IV, as applicable, reflecting such change;
(d) any material change in its method of business or in the Registration
Statement or Statement of Additional Information, if applicable (it being
understood that any change in the investment restrictions and limitations on
indebtedness applicable to such Borrower shall constitute material changes);
(e) the commencement of any litigation or any administrative, regulatory
or arbitration proceeding or investigation to which such Borrower may hereafter
become a party that may involve any material risk of any material final judgment
or liability not adequately covered by insurance or that may otherwise result in
any material adverse change in the business, assets, operations, prospects or
condition (financial or otherwise) of such Borrower; and
22
(f) the occurrence of any Default or Event of Default.
Section 5.7. TOTAL VALUE OF ASSETS, ETC. Such Borrower will, at any time
and from time to time during normal business hours, notify the Bank by telephone
or in writing, as requested by the Bank, of a listing of the portfolio
securities, the total asset value of such securities and the net asset value of
such securities of such Borrower, or the Portfolios of such Borrower, and any
changes in any of such values, in each case as most recently calculated.
Section 5.8. REPORTS, ADDITIONAL INFORMATION, ETC. Such Borrower will
cause to be furnished to the Bank:
(a) as soon as available, and not later than 90 days after the end of each
fiscal year of such Borrower, the Annual Report(s) of such Borrower for itself
or for its Portfolios, including audited financial statements certified by
Coopers & Xxxxxxx or other independent public accountants of national standing,
setting forth the Schedule of Investments and the Statement of Assets and
Liabilities of such Borrower or Portfolios, each as of the end of such fiscal
year, and including Statements of Operations, Cash Flows and Changes in Net
Assets of such Borrower or Portfolios for the fiscal period then ended;
(b) as soon as available, and not later than 60 days after the end of the
second fiscal quarter of such Borrower, the Semi-Annual Report(s) prepared by
such Borrower for itself or for its Portfolios, its administrator or accounting
agent , setting forth the Schedule of Investments and the Statement of Assets
and Liabilities of such Borrower or Portfolios, each as of the end of such
fiscal quarter, and including Statements of Operations, Cash Flows and Changes
in Net Assets of such Borrower or Portfolios for the fiscal period then ended;
(c) at the same times as such reports are furnished to such Borrower's
shareholders, any additional reports required by Section 30(d) of the 1940 Act
or any applicable law;
(d) upon request by the Bank, within 10 Business Days after the issuance
thereof, copies of all other regular and periodic reports and any other reports
that such Borrower may be required to file with the Securities and Exchange
Commission or any similar or corresponding governmental commission, department
or agency; and
(e) such other information with respect to the financial standing and
history or the business, property, assets or prospects of such Borrower or the
Portfolios of such Borrower as the Bank may, at any time and from time to time,
reasonably request.
Section 5.9. FURTHER ASSURANCES. Such Borrower will, at any time and from
time to time, execute and deliver such additional instruments and take such
further action as the Bank may reasonably request to carry out to the Bank's
satisfaction the transactions contemplated by this Agreement.
Section 5.10. PROHIBITED AFFILIATIONS. (a) Such Borrower will not,
directly or indirectly, own, control, or hold with power to vote, five percent
or more of the outstanding voting securities of
23
the Bank or any Affiliated Person of the Bank known to such Borrower to be such
an Affiliated Person;
(b) such Borrower will use its best efforts to ensure that it will not,
directly or indirectly, control the Bank or any Affiliated Person of the Bank
known to such Borrower to be such an Affiliated Person; and
(c) such Borrower will use its best efforts to ensure that none of its
officers, directors, or employees is or becomes an Affiliated Person of the Bank
or any Affiliated Person of the Bank known to such Borrower to be such an
Affiliated Person.
Section 5.11. NEGATIVE PLEDGE ON ASSETS. Such Borrower will not create or
permit to exist any lien or encumbrance upon any of its property or assets, or
the assets of the Portfolios, as applicable, other than (i) liens in favor of
the Bank; (ii) liens arising from attachments or similar proceedings, pending
litigation, judgments or taxes or assessments, in any such event whose validity
or amount is being contested in good faith by appropriate proceedings and for
which adequate reserves have been established and are maintained, or liens
arising from taxes and assessments which are not due and delinquent; and (iii)
banker's liens or rights of offset on deposits held in banks; PROVIDED that this
provision shall not prohibit the making of any collateral arrangement or the
segregation of assets as required by law in connection with certain portfolio
strategies, such as forward contracts, futures contracts and options.
Section 5.12. LIMITATION ON ADDITIONAL INDEBTEDNESS. Such Borrower will
not incur or permit to exist or remain outstanding, for its own account or for
the account of the Portfolios, as applicable, any Indebtedness to any person or
entity; PROVIDED, HOWEVER, that such Borrower may incur or permit to exist or
remain outstanding:
(a) Indebtedness of such Borrower incurred for its own account or for the
account of the Portfolios, as applicable, to the Bank arising under this
Agreement;
(b) Indebtedness in respect of taxes, assessments and other governmental
charges to the extent that payment thereof is not at the time required to be
made or is being contested in good faith by appropriate proceedings and for
which an adequate reserve has been established;
(c) Indebtedness of such Borrower incurred for its own account or for the
account of the Portfolios, as applicable, incurred in the ordinary course of
business and not incurred through the borrowing of money or the obtaining of
credit or the leasing of property, except that this provision shall not prohibit
(i) credit on an open account basis customarily extended to such Borrower in
connection with purchases of goods or services in the ordinary course of
business; (ii) the entry into reverse repurchase agreements; and (iii) short-
term credits for the clearance and settlement of securities transactions; and
(d) Indebtedness in respect of judgments or awards which have been in
force for less than the applicable appeal period, so long as execution is not
levied or in respect of which such Borrower shall at the time in good faith be
prosecuting an appeal or proceedings for review.
24
Section 5.13. LIMITATION ON DIVIDENDS. Such Borrower will not declare or
pay any dividend or make any other distribution on any class of its capital
stock or purchase any of such capital stock in violation of the requirements of
Section 18(a)(1)(B) of the 1940 Act or any other applicable law or regulation.
Section 6. EVENTS OF DEFAULT; ACCELERATION.
Section 6.1. EVENTS OF DEFAULT; ACCELERATION. If any of the following
events ("EVENTS OF DEFAULT" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice and/or lapse of time, "DEFAULTS")
shall occur:
(a) if any Borrower shall fail to pay any principal of any Loan
outstanding made to it hereunder for its own account or for the account of a
Portfolio when the same shall become due and payable, whether at the stated date
of maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) if any Borrower shall fail to pay any interest on any Loan outstanding
made to it for its own account or for the account of a Portfolio when the same
shall become due and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for payment, and such
failure shall continue unremedied for three Business Days;
(c) if any Borrower, acting for itself or on behalf of a Portfolio, shall
fail to perform, discharge, observe or comply with any of the terms, covenants
and agreements contained in Section 5.1, 5.6(f), 5.7 or 5.10 through 5.13;
(d) if any Borrower, acting for itself or on behalf of a Portfolio, shall
fail to perform, discharge, observe or comply with any of the terms, covenants
and agreements contained herein (other than those specified in paragraphs (a),
(b) and (c) of this Section 6.1), and such failure shall continue unremedied for
30 days after written notice of such failure has been given to such Borrower by
the Bank;
(e) if any representation or warranty of any Borrower contained in this
Agreement or any other document or instrument delivered by such Borrower
pursuant to or in connection with this Agreement shall prove to have been false
or misleading in any material respect as of the time when made or deemed to have
been made;
(f) if any Borrower, acting for itself or on behalf of a Portfolio, shall
fail in the performance or the payment, at maturity or within an applicable
period of grace, of any obligation contained in any agreement or instrument
evidencing any other indebtedness with respect to borrowed money or credit
received, or any mortgage, pledge, agreement, indenture or other agreement
relating thereto, for such period of time as would, or would have permitted
(assuming the giving of appropriate notice if required) the holder or holders
thereof or of any obligations issued thereunder to accelerate the maturity
thereof;
(g) if any Borrower makes an assignment for the benefit of creditors, or
admits in writing its inability to pay or generally fails to pay its debts as
they mature or become due, or petitions or
25
applies for the appointment of a trustee (in bankruptcy) or other custodian,
liquidator or receiver of such Borrower or of any substantial part of the
property or assets of such Borrower or commences any case or other proceeding
relating to such Borrower under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar law of
any jurisdiction, now or hereafter in effect, or takes any action to authorize
or in furtherance of any of the foregoing;
(h) if any such petition or application is filed or any such case or other
proceeding is commenced against such Borrower and such Borrower indicates its
approval thereof, consent thereto or acquiescence therein or an order for relief
or appointing any such trustee (in bankruptcy), custodian, liquidator or
receiver is entered adjudicating such Borrower bankrupt or insolvent, or
approving a petition in any such case or other proceeding, and such order
remains unstayed and in effect for more than 60 days, whether or not
consecutive;
(i) if there shall remain in force, undischarged, unsatisfied and
unstayed, for more than 30 days, whether or not consecutive, any final judgment
against such Borrower that, with other outstanding final judgments undischarged
against such Borrower, (i) exceeds, in the aggregate, $500,000 or (ii) shall
have a materially adverse effect upon the business, assets, operations,
prospects or condition (financial or otherwise) of such Borrower; or
(j) if there shall occur a material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of such
Borrower; it being acknowledged that a reduction in a Borrower's total assets
resulting from declines in the market value of its assets or, in the case of the
Portfolios, shareholder redemptions, shall not constitute a material adverse
change so long as the aggregate amount of such Borrower's Loans does not exceed
the Maximum Amount applicable to such Borrower;
then and in any such event and without notice or demand by the Bank (i) the
obligation of the Bank to make Loans to the defaulting Borrower shall terminate,
(ii) the Loans of such Borrower, all interest thereon and all other amounts
payable by such Borrower under this Agreement shall become and be forthwith due
and payable without presentment, demand, protest or notice, all of which are
expressly waived by such Borrower. In case any one or more of the foregoing
Events of Default shall have occurred and be continuing, and whether or not the
Bank shall have accelerated the maturity of the Loans of any Borrower pursuant
to the foregoing, the Bank may proceed to protect and enforce its rights against
such Borrower by suit in equity, action at law and/or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Agreement or any instrument pursuant to which the obligations
of any Borrower to the Bank hereunder are evidenced, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of the Bank hereunder. No remedy
conferred upon the Bank herein is intended to be exclusive of any other remedy
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or any other provision of law.
Section 7. SET-OFF. Any deposits, balances or other sums credited by or
due from the Bank to any Borrower hereunder for its own account or for the
account of a Portfolio may be, at any time or from time to time, set-off and
applied by the Bank, in such order as the Bank in its sole
26
discretion may determine, against the payment of all or any part of the
obligations of such Borrower hereunder for its own account or for the account of
such Portfolio then due and payable and any other liabilities, direct or
indirect, absolute or contingent, now existing or hereafter arising, of such
Borrower for its own account or for the account of such Portfolio then due and
payable to the Bank hereunder. The Bank agrees promptly to notify the
applicable Borrower of such set-off or application, PROVIDED that the failure to
give such notice shall not affect the validity of such set-off or application.
Section 8. EXPENSES. Whether or not the transactions contemplated hereby
are consummated, and to the extent any expense is attributable to any specific
Loan or Loans, the applicable Borrower(s) agrees to reimburse the Bank on demand
the amount of all reasonable expenses attributable to such Loan or Loans,
including but not limited to reasonable attorneys' fees and disbursements (and
the allocated costs of in-house counsel for the Bank), incurred or expended in
connection with the preparation or interpretation of this Agreement or any
amendment hereof, or with the enforcement of any obligations or the satisfaction
of any indebtedness of such Borrower hereunder incurred for its own account or
for the account of a Portfolio, or in connection with any litigation, proceeding
or dispute hereunder in any way related to the Bank's relationship hereunder.
To the extent any such expense is not so attributable to any Loan or Loans, each
Borrower agrees to pay to the Bank, in the proportion that the average amount of
Loans made to such Borrower for its own account or for the account of a
Portfolio outstanding during the preceding 12-month period (or such shorter
period that this Agreement shall have been effective) bears to the average
amount of all Loans outstanding to all Borrowers during such period (or, if no
Loans shall have been outstanding, 10% of such amount), the amount of such
expense, determined and paid as aforesaid.
Section 9. SURVIVAL OF COVENANTS, ETC. All covenants, agreements,
representations and warranties made herein or in any documents or other papers
delivered by, or on behalf of, each Borrower pursuant hereto shall be deemed to
have been relied upon by the Bank, notwithstanding any investigation heretofore
or hereafter made by it, and shall survive the making by the Bank of the Loans
to such Borrower, as herein contemplated, and shall continue in full force and
effect so long as any amount due under this Agreement remains outstanding and
unpaid or the Bank has any obligation to make any Loans to such Borrower
hereunder. All statements contained in any certificate, document or other paper
delivered by any authorized person to the Bank at any time by or on behalf of
any Borrower pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by such Borrower
hereunder.
Section 10. INDEMNIFICATION. (a) Each Borrower agrees to indemnify and
hold harmless the Bank from and against any and all claims, actions and suits
whether groundless or otherwise, and from and against any and all liabilities,
losses, damages and expenses of every nature and character arising out of this
Agreement or the transactions evidenced hereby as they directly relate to such
Borrower or the Loans made by the Bank to such Borrower for its own account or
for the account of a Portfolio; PROVIDED that the Bank shall have no right to be
indemnified hereunder with respect to any such claims, actions, suits,
liabilities, losses, damages and expenses to the extent arising as a result of
its own gross negligence, willful misconduct or bad faith; and PROVIDED, FURTHER
that no Borrower shall be liable for any settlement, compromise or consent to
the entry of any order adjudicating or otherwise disposing of any claim, action,
suit, liability, loss, damage or expense effected without the consent of such
Borrower. Should any claim be made by a person not a party to
27
this Agreement with respect to any matter to which the foregoing indemnity
relates, the Bank shall promptly notify the applicable Borrower of any such
claim, and such Borrower shall have the right to direct and control the defense
of such claim or any litigation based thereon at its own expense through counsel
of its own choosing.
(b) The Bank agrees to indemnify and hold harmless each Borrower from and
against any and all claims, actions and suits whether groundless or otherwise,
and from and against any and all liabilities, losses, damages and expenses of
every nature and character arising out of this Agreement or the transactions
evidenced hereby; PROVIDED that no Borrower shall have the right to be
indemnified hereunder with respect to any such claims, actions, suits,
liabilities, losses, damages and expenses to the extent arising as a result of
its own gross negligence, willful misconduct or bad faith; and PROVIDED, FURTHER
that the Bank shall not be liable for any settlement, compromise or consent to
the entry of any order adjudicating or otherwise disposing of any claim, action,
suit, liability, loss, damage or expense effected without the consent of the
Bank. Should any claim be made against a Borrower by a person not a party to
this Agreement with respect to any matter to which the foregoing indemnity
relates, such Borrower shall promptly notify the Bank of any such claim, and the
Bank shall have the right to direct and control the defense of such claim or any
litigation based thereon at its own expense through counsel of its own choosing.
Section 11. PARTIES IN INTEREST; PARTICIPATIONS. All the terms of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto; PROVIDED that no
Borrower may assign or transfer its rights hereunder or any interest herein
without the prior written consent of the Bank. The Bank may, with the prior
written consent of any Borrower (which shall not be unreasonably withheld or
delayed), assign or transfer to any other person or entity, all or any part of,
or any interest in, its rights and obligations hereunder with respect to such
Borrower, or without such consent, grant loan participations therein; PROVIDED
that in all cases other than the case of the sale of loan participations, the
Bank shall give the applicable Borrower prompt written notice thereof, and
PROVIDED, FURTHER that such Borrower shall make payment of all amounts due and
payable hereunder and deliver such documents as are required hereunder to the
Bank until such time as it is notified in writing to do otherwise.
Section 12. NOTICES, ETC. Except as otherwise expressly provided in this
Agreement, all notices, demands and other communications made or required to be
given pursuant to this Agreement shall be in writing and shall be delivered by
hand, by accepted express mail service, postage prepaid, or sent by telex or
facsimile transmission and confirmed by letter, addressed as follows:
(a) if to any Borrower, c/o BEA Associates, One Citicorp Center, 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxx Xxxxxxx, Vice
President - Fund Administration or at such other address for notice or
demand as any Borrower shall last have furnished in writing to the Bank; or
(b) if to the Bank, to the address set forth in the preamble of this
Agreement, Attention: Xxxx X. Xxxxx, Vice President, or at such other
address for notice as the Bank shall last have furnished in writing to each
Borrower.
28
Any such notice or demand shall be deemed to have been duly given or made and to
have become effective (a) if delivered by hand to a responsible officer of the
party to which it is directed, at the time of receipt thereof by such officer,
(b) if sent by accepted express mail service, postage prepaid, one Business Day
after posting thereof, and (c) if sent by facsimile transmission or telex, at
the time of receipt of any automatic answer-back or other similar acknowledgment
of receipt thereof.
Section 13. MISCELLANEOUS. This Agreement shall be deemed to be a
contract under the laws of The Commonwealth of Massachusetts and shall for all
purposes be construed in accordance with and governed by the laws of said
Commonwealth. The rights and remedies herein expressed are cumulative and not
exclusive of any other rights that the Bank or any Borrower, as the case may be,
would otherwise have. The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof. This
Agreement and any amendment hereof may be executed in several counterparts and
by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, but all of which together shall constitute one
instrument. In proving this Agreement, it shall not be necessary to produce or
account for more than one such counterpart signed by the party against whom
enforcement is sought.
Section 14. SEVERABILITY. If any of the provisions of this Agreement or
the application thereof to any party hereto or to any person or entity or
circumstance is held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other term
or provision hereof or thereof or the application thereof to any other party
hereto or to any other person or entity or circumstance.
Section 15. ENTIRE AGREEMENT, ETC. This Agreement amends and restates in
its entirety the Prior Agreement. This Agreement, together with any of the
documents executed in connection herewith, express the entire understanding of
the parties with respect to the transactions contemplated hereby. Neither this
Agreement nor any term hereof may be changed, waived, discharged or terminated
orally or in writing, except as provided in Section 16 hereof.
Section 16. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise
expressly provided in this Agreement, any consent or approval required or
permitted by this Agreement to be given by the Bank may be given, and any term
of this Agreement or of any other instrument related hereto or mentioned herein
may be amended, and the performance or observance by any Borrower of any terms
of this Agreement or such other instrument or the continuance of any Default or
Event of Default by such Borrower or any condition or term hereof applicable to
such Borrower may be waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only with, the written consent
of such Borrower and the written consent of the Bank. No waiver shall extend to
or affect any obligation not expressly waived or impair any right consequent
thereon. No course of dealing or delay or omission on the part of the Bank in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand on any Borrower shall entitle such
Borrower to other or further notice in similar or other circumstances.
Section 17. WAIVER OF JURY TRIAL. THE BANK AND EACH BORROWER AGREE THAT
NEITHER OF THEM NOR ANY ASSIGNEE OR SUCCESSOR SHALL (A) SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER ACTION
29
BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR THE DEALINGS OR THE
RELATIONSHIP BETWEEN OR AMONG ANY OF THEM, OR (B) SEEK TO CONSOLIDATE ANY SUCH
ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY THE BANK
AND EACH BORROWER, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
NEITHER THE BANK NOR ANY BORROWER HAS AGREED WITH OR REPRESENTED TO THE OTHER
THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
Section 18. SUBMISSION TO JURISDICTION. Each Borrower agrees that any
suit for the enforcement of this Agreement may be brought in the courts of The
Commonwealth of Massachusetts or any Federal Court sitting therein and consents
to the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon such Borrower by mail at the address specified in
Section 12 hereof. Each Borrower hereby waives any objection that it may now or
hereafter have to the venue of any such suit or any such court or that such suit
was brought in an inconvenient court.
Section 19. JUDGMENT CURRENCY. Each Borrower agrees to indemnify the Bank
against any loss incurred by it as a result of any judgment or order against
such Borrower being given or made for the payment of any amount due hereunder
which is expressed and paid in a currency (the "JUDGMENT CURRENCY") other than
the currency in which such amount was to be paid (the "OBLIGATION CURRENCY") and
as a result of any variation between (a) the rate of exchange at which the
Obligation Currency amount is converted into Judgment Currency for the purposes
of such judgment or order, and (b) the rate of exchange at which the Bank is
able to purchase the Obligation Currency with the amount of Judgment Currency
actually received by the Bank. The foregoing indemnity shall constitute a
separate and independent obligation of each Borrower and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "rate of exchange" shall include any premiums and costs of exchange payable
in connection with the purchase of, or conversions into, the relevant currency.
Section 20. CONFIDENTIALITY. The Bank agrees that in handling any non-
public information received from any Borrower hereunder the Bank shall exercise
the same degree of care that it exercises with respect to its own proprietary
information of the same or similar types in order to maintain the
confidentiality of such information, it being understood by each Borrower,
however, that disclosure of such information may be made (i) to the subsidiaries
or affiliates of the Bank in connection with their present or prospective
business relations with any Borrower, (ii) to prospective transferees or
purchasers of an interest in the Loans made to any Borrower, (iii) as required
by law, regulation, rule or order, subpoena, judicial order or similar order and
(iv) as may be required in connection with the examination, audit or similar
investigation of the Bank.
Section 21. OBLIGATIONS SEVERAL. The Bank agrees that the obligations of
each Borrower and, in case of the RBB Fund, each Portfolio, hereunder are
several and that the Bank shall have no recourse against any Borrower or
Portfolio for the payment or performance of the obligations of any other
Borrower or Portfolio.
30
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed as an instrument under seal by its duly authorized officer as
of the date first written above.
THE LATIN AMERICA INVESTMENT FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Title:
THE LATIN AMERICA EQUITY FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Title:
THE CHILE FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Title:
THE BRAZILIAN EQUITY FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Title:
THE PORTUGAL FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Title:
THE FIRST ISRAEL FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Title:
31
THE INDONESIA FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Title:
THE EMERGING MARKETS
TELECOMMUNICATIONS FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Title:
THE EMERGING MARKETS
INFRASTRUCTURE FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Title:
THE RBB FUND, INC.
acting on behalf of the following portfolios:
BEA Emerging Markets Equity Portfolio
BEA Global Fixed Income Portfolio
BEA International Equity Portfolio
BEA Municipal Bond Fund Portfolio
BEA Strategic Fixed Income Portfolio
BEA U.S. Core Equity Portfolio
BEA U.S. Core Fixed Income Portfolio
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Title: President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxx X. Xxxx
--------------------------------------
Vice President
32
SCHEDULE I
THE LATIN AMERICA INVESTMENT FUND, INC.
THE LATIN AMERICA EQUITY FUND, INC.
THE CHILE FUND, INC.
THE BRAZILIAN EQUITY FUND, INC.
THE PORTUGAL FUND, INC.
THE FIRST ISRAEL FUND, INC.
THE INDONESIA FUND, INC.
THE EMERGING MARKETS TELECOMMUNICATIONS FUND, INC.
THE EMERGING MARKETS INFRASTRUCTURE FUND, INC.
THE RBB FUND, INC.
LIMITATIONS ON BORROWING AND PLEDGING ASSETS
Part 1. AGREEMENTS WITH REGULATORS:
NONE.
Part 2. LIMITATIONS ON BORROWING CONTAINED IN PROSPECTUS OR STATEMENT OF
ADDITIONAL INFORMATION:
THE LATIN AMERICA INVESTMENT FUND, INC. Statement of Additional Information
provides as follows:
"Under its fundamental investment restrictions, the Fund may not: . . .
Issue senior securities, borrow money or pledge its assets, except that the
Fund may borrow from a lender (i) for temporary or emergency purposes, (ii)
for such short-term credits as may be necessary for the clearance or
settlement of transactions, (iii) to finance repurchases of its shares in
amounts not exceeding 10% (taken at the lower of cost or current value) of
its total assets (not including the amount borrowed), (iv) to pay any
dividends required to be distributed in order for the Fund to maintain its
qualification as a regulated investment company under the Internal Revenue
Code of 1986, as amended (the "Code") or (v) to pay Fund expenses outside
of Latin America, and not for the purpose of leveraging. In no event shall
borrowings by the Fund exceed 33 1/3% of the Fund's total assets (not
including the amount borrowed). Additional investments will not be made
when borrowings exceed 5% of the Fund's total assets. The Fund may pledge
its assets to secure such borrowings. For the purpose of this investment
restriction, collateral arrangements with respect to the writing of options
or the purchase or sale of future contracts or related options or forward
currency contracts are not deemed a pledge of assets or the issuance of a
senior security."
THE LATIN AMERICA EQUITY FUND, INC. Statement of Additional Information
provides as follows:
"Under its fundamental investment restrictions, the Fund may not: . . .
Issue senior securities, borrow money or pledge its assets, except
that the Fund may borrow from a lender (i) for temporary or emergency
purposes, (ii) for such short-term credits as may be necessary for the
clearance or settlement of transactions, (iii) to finance repurchases of
its shares in amounts not exceeding 10% (taken at the lower of cost or
current value) of its total assets (not including the amount borrowed),
(iv) to pay any dividends required to be distributed in order for the Fund
to maintain its qualification as a regulated investment company under the
Internal Revenue Code of 1986, as amended (the "Code") or (v) to pay Fund
expenses outside of Latin America, and not for the purpose of leveraging.
In no event shall borrowings by the Fund exceed 33 1/3% of the Fund's total
assets (not including the amount borrowed). Additional investments will
not be made when borrowings exceed 5% of the Fund's total assets. The Fund
may pledge its assets to secure such borrowings. For the purpose of this
investment restriction, collateral arrangements with respect to the writing
of options or the purchase or sale of future contracts or related options
or forward currency contracts are not deemed a pledge of assets or the
issuance of a senior security."
THE CHILE FUND, INC. Prospectus, as modified by shareholder vote, provides
as follows:
"Under its fundamental restrictions, the Fund may not: . . .
Issue senior securities, borrow money or pledge its assets, except
that the Fund may borrow from a lender (i) for temporary or emergency
purposes, (ii) for such short-term credits as may be necessary for the
clearance or settlement of transactions, (iii) to refinance repurchases of
its shares in amounts not exceeding 10% (taken at the lower of cost or
current value) of its total assets (not including the amount borrowed),
(iv) to pay any dividends required to be distributed in order for the Fund
to maintain its qualification as a regulated investment company under the
Internal Revenue Code of 1986, as amended (the "Code") or (v) to pay Fund
expenses outside of Chile, and not for the purpose of leveraging. In no
event shall borrowings by the Fund exceed 33 1/3% of the Fund's total
assets (not including the amount borrowed). Additional investments will
not be made when borrowings exceed 5% of the Fund's total assets. The Fund
may pledge its assets to secure such borrowings. For the purpose of this
investment restriction, collateral arrangements with respect to the writing
of options or the purchase or sale of future contracts or related options
or forward currency contracts are not deemed a pledge of assets or the
issuance of a senior security."
THE BRAZILIAN EQUITY FUND, INC. Prospectus provides as follows:
"Under its fundamental investment restrictions, the Fund may not: . . .
2
Issue senior securities, borrow money or pledge its assets, except that the
Fund may borrow from a lender (a) for temporary or emergency purposes, (b)
for such short-term credits as may be necessary for the clearance or
settlement of the transactions, (c) to finance repurchases of its shares
. . ., in amounts not exceeding 10% (taken at the lower of cost or current
value) of its total assets (not including the amount borrowed), or (d) to
pay any dividends required to be distributed in order for the Fund to
maintain its qualification as a regulated investment company under the U.S.
Internal Revenue Code of 1986 or otherwise to avoid taxation under that
Code. Additional investments will not be made when borrowings exceed 5% of
the Fund's assets. The Fund may pledge its assets to secure borrowings."
THE PORTUGAL FUND, INC. Prospectus, as modified by shareholder vote,
provides as follows:
"Under its fundamental restrictions, the Fund may not: . . .
Issue senior securities, borrow money or pledge its assets, except
that the Fund may borrow from a lender (i) for temporary or emergency
purposes, (ii) for such short-term credits as may be necessary for the
clearance or settlement of transactions, (iii) to refinance repurchases of
its shares in amounts not exceeding 10% (taken at the lower of cost or
current value) of its total assets (not including the amount borrowed) or
(iv) to pay any dividends required to be distributed in order for the Fund
to maintain its qualification as a regulated investment company under the
Internal Revenue Code of 1986, as amended (the "Code"). In no event shall
borrowings by the Fund exceed 33 1/3% of the Fund's total assets (not
including the amount borrowed). Additional investments will not be made
when borrowings exceed 5% of the Fund's total assets. The Fund may pledge
its assets to secure such borrowings. For the purpose of this
investment restriction, collateral arrangements with respect to the writing
of options or the purchase or sale of future contracts or related options
or forward currency contracts are not deemed a pledge of assets or the
issuance of a senior security."
THE FIRST ISRAEL FUND, INC. Prospectus provides as follows:
"Under its fundamental restrictions, the Fund may not: . . .
Issue senior securities, borrow or pledge its assets including entering
into reverse repurchase agreements, except that the Fund may borrow to make
distributions required for the Fund to maintain its qualification as a
regulated investment company under the Code for U.S. tax purposes, for
temporary or emergency purposes, for the clearance of transactions in
amounts not exceeding 10% (taken at the lower of cost or current value) of
its total assets (not including the amount borrowed) or to pay certain
excise taxes. The Fund may borrow up to 33 1/3% of its total assets
(including the amount borrowed) to finance the repurchase and/or tender for
its shares if, after such borrowing there is asset coverage of at least
300% as defined in the 1940 Act, for temporary purposes in an additional
amount not exceeding 5% of the value of the total assets of the Fund (for
the purposes of this restriction, collateral
3
arrangements with respect to options, futures contracts, options on futures
contracts and reverse repurchase agreements and collateral arrangements
meeting applicable Securities and Exchange Commission requirements with
respect to initial and variation margin are not deemed to be the issuance
of a senior security) and may also pledge its assets to secure such
borrowings."
THE INDONESIA FUND, INC. Prospectus, as modified by shareholder vote,
provides as follows:
"Under its fundamental investment restrictions, the Fund may not: . . .
Issue senior securities, borrow money or pledge its assets, except
that the Fund may borrow from a lender (i) for temporary or emergency
purposes, (ii) for such short-term credits as may be necessary for the
clearance or settlement of transactions, (iii) to refinance repurchases of
its shares in amounts not exceeding 10% (taken at the lower of cost or
current value) of its total assets (not including the amount borrowed) or
(iv) to pay any dividends required to be distributed in order for the Fund
to maintain its qualification as a regulated investment company under the
Internal Revenue Code of 1986, as amended (the "Code"). In no event shall
borrowings by the Fund exceed 33 1/3% of the Fund's total assets (not
including the amount borrowed). Additional investments will not be made
when borrowings exceed 5% of the Fund's total assets. The Fund may pledge
its assets to secure such borrowings. For the purpose of this investment
restriction, collateral arrangements with respect to the writing of options
or the purchase or sale of future contracts or related options or forward
currency contracts are not deemed a pledge of assets or the issuance of a
senior security. Subscription and collateral arrangements in connection
with the purchase of Indonesian securities in public offerings will not be
limited by this restriction."
THE EMERGING MARKETS TELECOMMUNICATIONS FUND, INC. Prospectus provides as
follows:
"Under its fundamental investment restrictions, the Fund may not: . . .
Issue senior securities, borrow money or pledge its assets, except that the
Fund may borrow from a lender (i) for temporary or emergency purposes, (ii)
for such short-term credits as may be necessary for the clearance or
settlement of the transactions, (iii) to finance repurchases of its shares
. . ., in amounts not exceeding 10% (taken at the lower of cost or current
value) of its total assets (not including the amount borrowed), or (iv) to
pay any dividends required to be distributed in order for the Fund to
maintain its qualification as a regulated investment company under the Code
or otherwise to avoid taxation under the Code. Additional investments will
not be made when borrowings exceed 5% of the Fund's total assets. The Fund
may pledge its assets to secure such borrowings. For the purpose of this
investment restriction, collateral arrangements with respect to the writing
of options or the purchase or sale of future contracts or related options
or forward currency contracts are not deemed a pledge of assets or the
issuance of a senior security."
4
THE EMERGING MARKETS INFRASTRUCTURE FUND, INC. Prospectus provides as
follows:
"Under its fundamental investment restrictions, the Fund may not: . . .
Issue senior securities, borrow money or pledge its assets, except that the
Fund may borrow from a lender (i) for temporary or emergency purposes, (ii)
for such short-term credits as may be necessary for the clearance or
settlement of the transactions, (iii) to finance repurchases of its shares
. . . in amounts not exceeding 10% (taken at the lower of cost or current
value) of its total assets (not including the amount borrowed), or (iv) to
pay any dividends required to be distributed in order for the Fund to
maintain its qualification as a regulated investment company under the Code
or otherwise to avoid taxation under the Code. Additional investments will
not be made when borrowings exceed 5% of the Fund's total assets. The Fund
may pledge its assets to secure such borrowings. For the purpose of this
investment restriction, collateral arrangements with respect to the writing
of options or the purchase or sale of future contracts or related options
or forward currency contracts are not deemed a pledge of assets or the
issuance of a senior security."
THE RBB FUND, INC. Statement of Additional Information provides as follows:
"Each Fund may not: . . .
Borrow money, except from banks, and only if after such borrowing there is
asset coverage of at least 300% for all borrowings of the Portfolio; or
mortgage, pledge or hypothecate any of its assets except in connection with
any such borrowing and in amounts not in excess of the lesser of the dollar
amounts borrowed or 33 1/3% of the value of the Portfolio's total assets at
the time of such borrowing; (For the purpose of this restriction,
collateral arrangements with respect to, if applicable, the writing of
options, and futures contracts, options on futures contracts, forward
currency contracts and collateral arrangements with respect to initial and
variation margin are not deemed to be a pledge of assets and neither such
arrangements nor the purchase or sale of futures or related options are
deemed to be the issuance of a senior security for purposes of [the
investment limitation restricting the issuance of senior securities except
as permitted under the Investment Company Act]."
5
SCHEDULE II
THE LATIN AMERICA INVESTMENT FUND, INC.
THE LATIN AMERICA EQUITY FUND, INC.
THE CHILE FUND, INC.
THE BRAZILIAN EQUITY FUND, INC.
THE PORTUGAL FUND, INC.
THE FIRST ISRAEL FUND, INC.
THE INDONESIA FUND, INC.
THE EMERGING MARKETS TELECOMMUNICATIONS FUND, INC.
THE EMERGING MARKETS INFRASTRUCTURE FUND, INC.
THE RBB FUND, INC.
WIRING INSTRUCTIONS
THE LATIN AMERICA INVESTMENT FUND, INC.
Provident National Bank
ABA#: 031-000-053
Attn: Mutual Fund Department
Acct#: 1108816
Attn: Bob Scuba
Credit Deposit to: THE LATIN AMERICA INVESTMENT FUND, INC.
Acct #: 34-34-012-036-2844
THE CHILE FUND, INC.
Provident National Bank
ABA#: 031-000-053
Attn: Mutual Fund Department
Acct#: 1108816
Attn: Bob Scuba
Credit Deposit to: THE CHILE FUND, INC.
Acct #: 34-34-012-036-2072
THE BRAZILIAN EQUITY FUND, INC.
Provident National Bank
ABA#: 000-000-000
6
Attn: Mutual Fund Department
Acct#: 1108816
Attn: Bob Scuba
Credit Deposit to: THE BRAZILIAN EQUITY FUND, INC.
Acct #: 34-34-012-036-3044
THE LATIN AMERICA EQUITY FUND, INC.
Bank of Boston
ABA #: 000-000-000
F/A Xxxxx Brothers Xxxxxxxx & Co., Boston
A/C#: 000-0000-0
F/C THE LATIN AMERICA EQUITY FUND, INC.
A/C#: 8149320
THE PORTUGAL FUND, INC.
PNC Bank N.A.
ABA # 031-000-053
Attn: Mutual Fund Dept.
A/C# 1108816
Attn: Bob Scuba
Credit Deposit to: THE PORTUGAL FUND, INC.
A/C# 34340120362153
THE FIRST ISRAEL FUND, INC.
Bankers Trust Company, New York
ABA# 000-000-000
A/C Xxxxx Brothers Xxxxxxxx & Co., NY
Acct# 00-000-000
A/C ISRAEL FUND
A/C# 813603-8
THE INDONESIA FUND, INC.
PNC Bank N.A.
ABA# 000000000
A/C# 00-0000-0000
Attn: Custody Administration
REF: INDONESIA FUND
7
THE EMERGING MARKETS TELECOMMUNICATIONS FUND, INC.
Bankers Trust Company, New York
ABA# 000-000-000
A/C Xxxxx Brothers Xxxxxxxx & Co., New York
ACCT# 00-000-000
A/C EMERGING MARKETS TELECOM FUND
A/C 8135204
THE EMERGING MARKETS INFRASTRUCTURE FUND, INC.
Bankers Trust Company, New York
ABA# 000-000-000
A/C Xxxxx Brothers Xxxxxxxx & Co., New York
A/C# 00-000-000
Favor: EMERGING MARKETS INFRASTRUCTURE FUND
BEA STRATEGIC FIXED INCOME PORTFOLIO
Bankers Trust Company, New York
ABA# 000-000-000
A/C Xxxxx Brothers Xxxxxxxx & Co., New York
A/C# 00-000-000
A/C RBB STRATEGIC FUND
A/C 8122822
BEA EMERGING MARKETS EQUITY PORTFOLIO
Bankers Trust Company, New York
ABA# 000-000-000
A/C Xxxxx Brothers Xxxxxxxx & Co., N.Y.
A/C# 00-000-000
A/C RBB EMERGING MARKETS FUND
A/C 8122806
BEA U.S. CORE EQUITY PORTFOLIO
Bankers Trust, NY
ABA# 000-000-000
A/C Xxxxx Brothers Xxxxxxxx & Co., Boston
A/C# 00-000-000
8
Ref A/C BEA US CORE EQUITY FUND
Ref A/C# 8122905
BEA U. S. CORE FIXED INCOME PORTFOLIO
Bankers Trust Company, New York
ABA# 000-000-000
A/C Xxxxx Brothers Xxxxxxxx & Co., Boston
A/C# 00-000-000
REF: BEA/RBB CORE FIXED INCOME
REF A/C# 8122913
BEA INTERNATIONAL EQUITY PORTFOLIO
Bankers Trust Company, New York
ABA# 000-000-000
A/C Xxxxx Brothers Xxxxxxxx & Co., New York
ACC# 00-000-000
A/C RBB INTERNATIONAL EQUITY FUND
A/C# 8122814
BEA MUNICIPAL BOND FUND PORTFOLIO
PNC Bank N.A.
ABA# 031-0000-53
Attn: Mutual Fund Dept.
A/C 1100343
Credit to: BEA MUNICIPAL BOND FUND PORTFOLIO
A/C 340110181646
BEA GLOBAL FIXED INCOME PORTFOLIO
Bankers Trust, NY
ABA# 000-000-000
A/C Xxxxx Brothers Xxxxxxxx & Co., Boston
A/C# 00-000-000
A/C BEA GLOBAL FIXED INCOME FUND
A/C# 8122830
9
SCHEDULE III
THE LATIN AMERICA INVESTMENT FUND, INC.
THE LATIN AMERICA EQUITY FUND, INC.
THE CHILE FUND, INC.
THE BRAZILIAN EQUITY FUND, INC.
THE PORTUGAL FUND, INC.
THE FIRST ISRAEL FUND, INC.
THE INDONESIA FUND, INC.
THE EMERGING MARKETS TELECOMMUNICATIONS FUND, INC.
THE EMERGING MARKETS INFRASTRUCTURE FUND, INC.
THE RBB FUND, INC.
ISSUERS 10% OR MORE OF WHOSE OUTSTANDING VOTING SECURITIES
ARE OWNED OR CONTROLLED BY EACH BORROWER
% of Voting Securities
Owned by such Name
Name of Borrower Name of Issuer of Borrower
---------------- -------------- ------------------------
NONE
1
SCHEDULE IV
THE LATIN AMERICA INVESTMENT FUND, INC.
THE LATIN AMERICA EQUITY FUND, INC.
THE CHILE FUND, INC.
THE BRAZILIAN EQUITY FUND, INC.
THE PORTUGAL FUND, INC.
THE FIRST ISRAEL FUND, INC.
THE INDONESIA FUND, INC.
THE EMERGING MARKETS TELECOMMUNICATIONS FUND, INC.
THE EMERGING MARKETS INFRASTRUCTURE FUND, INC.
THE RBB FUND, INC.
PERSONS HOLDING 5% OR MORE OF
OUTSTANDING VOTING SECURITIES OF THE BORROWERS
(As of September 30, 1994)
% of Borrower's Voting
Name of Person Securities
-------------- ----------------------
0THE LATIN AMERICA INVESTMENT FUND, INC. NONE
THE LATIN AMERICA EQUITY FUND, INC. NONE
THE CHILE FUND, INC. NONE
THE PORTUGAL FUND, INC.
1) Ardsley Partners 14.9%
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
THE FIRST ISRAEL FUND, INC. NONE
1
THE INDONESIA FUND, INC.
1) Fiduciary Trust Company International* 9%
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
2) United Nations Joint Staff Pension Fund 8.7%
United Nations
Xxx Xxxx, XX 00000
3) Wellington Management Company 7%
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
THE EMERGING MARKETS TELECOMMUNICATIONS FUND NONE
THE EMERGING MARKETS INFRASTRUCTURE FUND, INC.
1) Xxxxxxxxx & Xxxxxx 7.7%
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
THE RBB FUND, INC.
BEA INTERNATIONAL EQUITY PORTFOLIO
1) EG&G Inc. 5%
EG&G Master Trust
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
* Includes shares held by its client, United Nations Joint Staff Pension Fund.
2
BEA STRATEGIC FIXED INCOME PORTFOLIO
1) State of Oregon
Treasury Department 43%
000 Xxxxx Xxxxxxx Xxxxxxxx
Xxxxx, XX 00000
2) The Chase Manhattan Bankers Trust 14%
For Kendale Company Master Pension Plan
0 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
BEA EMERGING MARKETS EQUITY PORTFOLIO
1) Amherst X. Xxxxxx Foundation 6%
000 Xxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
2) Bryn Mawr College 12%
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
3) Northern Trust Company TTEE 23%
Texas Instruments Employee Plan
P.O. Box 92956
AC #22-69966/2-059328
Xxxxxxx, XX 00000-0000
4) Wachovia Bank North Carolina 10%
Carolina Power & Light Co.
Supplemental Retirement Trust
000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
5) Wachovia Bank North Carolina 6%
Xxxxxxx Companies Inc.
Master Pension Trust
000 Xxxxx Xxxx Xxxxxx P.O. Box 3099
Winston Salem, NC 27150
BEA U.S. CORE EQUITY PORTFOLIO
1) Bank of New York 100%
Trust APU Buckeye Pipeline
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
3
BEA U.S. CORE FIXED INCOME PORTFOLIO
1) New England UFCW & Employers 47%
Pension Fund Board of Trustees
000 Xxxxxx Xx. Xxxxx 000
Xxxxxxxxx, XX 00000
2) Bankers Trust 40%
Pechiney Corporation Pension
Master Trust
00 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx Xxxx, XX 00000
3) Xxxxxx School Ltd. and Endowment Fund5%
Attn: Xxxxxx Xxxxxx
0 Xxxx 00xx Xxxxxx, Xxxxx 00000
Xxx Xxxx, XX 00000
BEA GLOBAL FIXED INCOME PORTFOLIO
1) Bank of New York 100%
Eastern Enterprises Retirement
Plan Trust
Xxx Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
BEA MUNICIPAL BOND FUND PORTFOLIO
1) Xxxxxx Xxxxxxxx 10%
0 Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
2) Xxxx X. Xxxxxx 6%
c/o Xxxxx Xxxxxxxx
00 Xxxxx Xxxxx Xxxx
Xxx Xxx, XX 00000
4
EXHIBIT A
LOAN REQUEST
I, ______________________, _____________________ of ___________________,
(the "Borrower"), acting pursuant to Section 2.2 of the Credit Agreement dated
as of December 15, 1994 by and between The First National Bank of Boston (the
"Bank") and the Borrower (the "AGREEMENT"), do hereby certify to the Bank as
follows:
1. The Borrower has requested that the Bank make a Loan (as defined in
the Agreement) in the principal amount of $____________ [for its
_____________ Portfolio] on the date hereof (the "REQUESTED LOAN") to
mature on ______________ and to bear interest at the [Adjusted
Eurodollar Rate plus __%][Base Rate].
2. On the date hereof, the total asset value of the [Borrower's]
[Portfolio's] portfolio securities is $_______________; the net asset
value of the [Borrower's] [Portfolio's] portfolio is
$__________________; and the total value of the unencumbered assets in
the [Borrower's] [Portfolio's] portfolio is $_________________.
3. The total principal amount outstanding of all Loans made to all
Borrowers pursuant to the Agreement is _________________________ on
the date hereof prior to the borrowing of the Requested Loans.
4. The Maximum Amount (as defined in the Agreement) for the [Borrower]
[Portfolio], being the maximum amount the [Borrower] [Portfolio] is
authorized to borrow under the Agreement on the date hereof, is
$____________________.
5. Except as described on attached SCHEDULE III to the Agreement, the
[Borrower] [Portfolio] does not directly or indirectly own, control or
hold with power to vote, 5% or more of the outstanding voting
securities of any issuer.
6. The representations and warranties set forth in Section 4 of the
Agreement are true and correct as of the date hereof as though made on
and as of the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this ______ day of
____________, 19__.
______________________________
By: ___________________________
Title:
1
EXHIBIT B-1
FORM OF OPINION OF COUNSEL TO THE RBB FUND
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
RE: Amended and Restated Credit Agreement dated as of December 15, 1994 by
and among The First National Bank of Boston and each of The Latin America
Investment Fund, Inc., The Latin America Equity Fund, Inc., The Chile Fund,
Inc., The Brazilian Equity Fund, Inc., The Portugal Fund, Inc., The First Israel
Fund, Inc., The Indonesia Fund, Inc., The Emerging Markets Telecommunications
Fund, Inc., The Emerging Markets Infrastructure Fund, Inc. and The RBB Fund,
acting on behalf of BEA Emerging Markets Equity Portfolio, BEA Global Fixed
Income Portfolio, BEA International Equity Portfolio, BEA Municipal Bond Fund
Portfolio, BEA Strategic Fixed Income Portfolio, BEA U.S. Core Equity Portfolio,
and BEA U.S. Core Fixed Income Portfolio.
Ladies and Gentlemen:
We are counsel to The RBB Fund, Inc., a Maryland corporation (the "Fund"),
acting on behalf of BEA International Equity Portfolio, BEA Emerging Markets
Equity Portfolio, BEA Global Fixed Income Portfolio, BEA Strategic Fixed Income
Portfolio, BEA U.S. Core Equity Portfolio, BEA U.S. Core Fixed Income Portfolio,
and BEA Municipal Bond Fund Portfolio (each a "Portfolio", collectively the
"Portfolios"), and have represented the Fund and its Portfolios in connection
with the preparation, execution and delivery of the Amended and Restated Credit
Agreement dated as of December 15, 1994 (the "Agreement") among The First
National Bank of Boston (the "Bank"), the Fund on behalf of the Portfolios, and
other funds advised by BEA Associates ("BEA"). All terms not defined herein and
defined in the Agreement shall have the same meanings herein as in the
Agreement.
We have examined executed counterparts of the Agreement and originals, or
copies, the authenticity of which has been established to our satisfaction, of
such other documents, corporate records, agreements and instruments and
certificates of public officials and officers of the Fund as we have deemed
necessary as the basis for the opinions herein expressed. As to the questions
of fact material to such opinions we have, when relevant facts were not
independently established, relied upon certifications by officers of the Fund.
In expressing the opinions set forth below, we have assumed, and so far as
is known to us there are no facts inconsistent with, the following:
1. Each of the parties (other than the Fund) executing the Agreement has
duly and validly executed and delivered the Agreement, and such party's
obligations set forth therein are legal, valid and binding;
1
The First National Bank of Boston
December 15, 1994
Page 2
2. Each individual executing the Agreement on behalf of a party (other
than the Fund) is duly authorized to do so;
3. Each individual executing the Agreement is legally competent to do so;
and
4. All counterparts of the Agreement submitted to us as originals are
authentic. All counterparts of the Agreement submitted to us as certified or
photostatic copies conform to the original documents. All signatures on all
such counterparts of the Agreement are genuine. All public records reviewed or
relied upon by us or on our behalf are true and complete. All statements and
information contained in the counterparts of the Agreement are true and
complete.
The phrase "known to us" means the actual knowledge, without independent
inquiry, of the lawyers at our firm who have performed legal services in
connection with the issuance of this opinion.
Based on the foregoing and having regard for such legal considerations as
we have deemed relevant, and subject to the limitations and qualifications
below, it is our opinion that:
1. The Fund is duly organized and validly existing under the laws of the
State of Maryland and is duly qualified to do business in each other
jurisdiction wherein the nature of its properties or its business requires such
qualification and in which the failure to be so qualified may reasonably be
expected to materially and adversely affect the business, assets or condition
(financial or otherwise) of the Fund.
2. The Fund is registered as an open-end management company under the
Investment Company Act of 1940.
3. The execution, delivery and performance by the Fund of the Agreement
are within the corporate powers of the Fund, have been duly authorized by all
necessary and proper action on the part of the Fund, and do not and will not:
(i) violate or contravene any provision of the Fund's charter documents or
bylaws, as amended and in effect on the date hereof; (ii) contravene any
provision of the Fund's Prospectus or Registration Statement, as applicable;
(iii) to our knowledge, conflict with, or result in a breach of any material
term, condition or provision of, or constitute a default under or result in the
creation of any mortgage, lien, pledge, charge, security interest or other
encumbrance upon any of the property or assets of the Fund under, any material
agreement, trust deed, indenture, mortgage or other instruments to which the
Fund is a party or by which the Fund or any of the property or assets of the
Fund is bound or affected; or (iv) to our knowledge, violate or contravene any
provision of any material law, regulation, order, ruling or interpretation
thereunder or any decree, order or judgment of any court or governmental or
regulatory authority, bureau, agency or official to the extent applicable to the
Fund.
2
The First National Bank of Boston
December 15, 1994
Page 3
4. The Agreement has been duly executed and delivered by the Fund. We
know of no reason why the choice of law provisions of the Agreement, which set
forth Massachusetts law as the governing law, would not be enforced by the
courts of the State of Maryland, as agreed upon by the parties; provided,
however, that there is a substantial or vital relationship between the chosen
situs and the issue to be decided and that the particular application of such
laws does not violate public policy as applied by the courts of the State of
Maryland.
5. No authorization, approval, consent, or other action by, and no notice
to or filing with, any shareholder or creditor of the Fund, or governmental or
regulatory agency or authority, is required to make valid and legally binding
the execution, delivery and performance by the Fund of the Agreement or the
consummation by the Fund of the transactions contemplated by the Agreement, or
the exercise by the Bank of its rights and remedies thereunder.
6. To our knowledge, there are no pending or threatened actions, suits,
investigations or proceedings at law or in equity before any federal or state
court, governmental or regulatory authority, agency, commission, board, bureau
or instrumentality, or board of arbitration, against or affecting the Fund or
its right, title and interest in or to any of its properties or assets, an
adverse decision in which could materially and adversely affect the financial
condition or business of the Fund.
We are members of the Bars of the Commonwealth of Pennsylvania and the
State of Maryland only and do not opine as to the laws of any jurisdiction other
than the laws of the Commonwealth of Pennsylvania and the State of Maryland and
the laws of the United States, and the opinion set forth above is, accordingly,
limited to the laws of those jurisdictions.
This letter and the opinion expressed herein are being furnished solely for
your information and may not be relied upon by any other person without our
prior written consent.
Very truly yours,
3
THE LATIN AMERICA INVESTMENT FUND, INC.
[THE LATIN AMERICA EQUITY FUND, INC.]
[THE CHILE FUND, INC.]
[THE BRAZILIAN EQUITY FUND, INC.]
CERTIFICATE OF SECRETARY
I, the undersigned, the duly elected Secretary of _________________, a
Maryland corporation (the "Borrower"), hereby certify that:
1. Attached hereto as EXHIBIT A is a true and correct copy of the
Articles of Incorporation of the Borrower and all amendments thereto,
which Articles of Incorporation are in full force and effect.
2. Attached hereto as EXHIBIT B is a true and correct copy of the bylaws
of the Borrower and all amendments thereto, which bylaws are in full
force and effect.
3. Attached hereto as EXHIBIT C is a true, correct and complete copy of
resolutions of the Board of Directors of the Borrower adopted as of
______________, relating to a certain Credit Agreement with The First
National Bank of Boston dated as of December 31, 1993, which
resolutions are certified by me, are duly authorized, have not been
modified and are in full force and effect on the date hereof.
4. Each of the persons named below is a duly elected, qualified and
acting officer of the Borrower serving in the capacity set forth
below, and set forth opposite his name below is his genuine
autographic signature in the usual form thereof with which I am
familiar:
NAME TITLE SIGNATURE
---- ----- ---------
IN WITNESS WHEREOF, I have executed this Certificate this ________ day of
______________, 1993.
_______________________________
_______________________________
Secretary
[SEAL]
The undersigned hereby certifies that the person executing the above
Certificate as Secretary of the Borrower is, on and as of the date hereof, the
duly elected, qualified and acting Secretary of the Borrower, and the signature
of such person appearing above is such person's true signature.
___________________________________
EXHIBIT B-2
FORM OF OPINION OF COUNSEL TO THE FIRST ISRAEL FUND
December 15, 1994
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
RE: Amended and Restated Credit Agreement dated as of December 15, 1994 by
and among The First National Bank of Boston and each of The Latin
America Investment Fund, Inc., The Latin America Equity Fund, Inc.,
The Chile Fund, Inc., The Brazilian Equity Fund, Inc., The Portugal
Fund, Inc., The First Israel Fund, Inc., The Indonesia Fund, Inc., The
Emerging Markets Telecommunications Fund, Inc., The Emerging Markets
Infrastructure Fund, Inc. and The RBB Fund, acting on behalf of BEA
Emerging Markets Equity Portfolio, BEA Global Fixed Income Portfolio,
BEA International Equity Portfolio, BEA Municipal Bond Fund Portfolio,
BEA Strategic Fixed Income Portfolio, BEA U.S. Core Equity Portfolio,
and BEA U.S. Core Fixed Income Portfolio.
Ladies and Gentlemen:
We have acted as special counsel to The First Israel Fund, Inc., a Maryland
corporation (the "Borrower"), in connection with the preparation, execution and
delivery of the Amended and Restated Credit Agreement, dated as of December 15,
1994 (the "Agreement"), among The First National Bank of Boston (the "Bank") and
each of the Borrowers (as defined in the Agreement). Capitalized terms used
herein and not otherwise defined herein shall have the same meanings herein as
ascribed thereto in the Agreement.
In our examination we have assumed the genuineness of all signatures (other
than those of the Borrower) including endorsements, the legal capacity of
natural persons, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as
certified or photostatic copies, and the authenticity of the originals of such
copies. As to any facts material to this opinion which we did not independently
establish or verify, we have relied upon statements and representations of the
Borrower and its officers and other representatives and of public officials,
including the facts set forth in the Borrower's Certificate described below.
In rendering the opinions set forth herein, we have examined and relied on
originals or copies of the following:
(a) the Agreement,
1
(b) the certificate of the Borrower executed by ________________________
dated the date hereof, a copy of which is attached as Exhibit A hereto (the
"Borrower's Certificate");
(c) certified copies of the Articles of Incorporation and By-laws of the
Borrower;
(d) a certified copy of certain resolutions of the Board of Directors of
the Borrower adopted on October __, 1994;
(e) certificates from public officials in the States of Maryland and New
York as to the good standing of the Borrower in each jurisdiction; and
(f) such other documents as we have deemed necessary or appropriate as a
basis for the opinions set forth below.
Members of our firm are admitted to the bar of the State of New York. We
express no opinion as to the laws of any jurisdiction other than (i) the laws of
the State of New York and (ii) the federal laws of the United States of America.
Based upon the foregoing and subject to the limitations, qualifications,
exceptions and assumptions set forth herein, we are of the opinion that:
1. The Borrower is qualified to do business and is in good standing as a
foreign corporation under the laws of the State of New York.
2. The Borrower has the corporate power and corporate authority to
execute, deliver and perform all of its obligations under the Agreement. The
execution and delivery of the Agreement and the consummation by the Borrower of
the transactions contemplated thereby have been duly authorized by all requisite
corporate action on the part of the Borrower. The Agreement has been duly
executed and delivered by the Borrower.
3. The Agreement, if it were governed by New York law, would constitute
the valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms.
4. The execution and delivery by the Borrower of the Agreement and the
performance by the Borrower of its obligations under the Agreement, in
accordance with its terms, do not (i) conflict with the Certificate of
Incorporation or By-laws of the Borrower, (ii) constitute a violation of or a
default under any Applicable Contracts (as hereinafter defined) or (iii) cause
the creation of any security interest or lien upon any of the property of the
Borrower pursuant to any Applicable Contracts. "Applicable Contracts" mean
those agreements or instruments set forth on Schedule I and which have been
identified to us as all the agreements and instruments which are material to the
business or financial condition of the Borrower.
5. Neither the execution, delivery or performance by the Borrower of the
Agreement nor the compliance by the Borrower with the terms and provisions
thereof will contravene any provision of any Applicable Law (as hereinafter
defined). "Applicable Laws" shall mean those laws, rules and regulations of the
State of New York and of the United States of America (including, without
2
limitation, Regulations G, U and X of the Federal Reserve Board) which, in our
experience, are normally applicable to transactions with registered investment
companies similar to the Borrower and of the type contemplated by the Agreement.
6. No Governmental Approval (as hereinafter defined), which has not been
obtained or taken and is not in full force and effect, is required to authorize
or is required in connection with the execution, delivery or performance of the
Agreement by the Borrower. "Governmental Approval" means any consent, approval,
license, authorization or validation of, or filing, recording or registration
with, any Governmental Authority (as hereinafter defined) pursuant to Applicable
Laws. "Governmental Authority" means any federal or New York executive,
legislative, judicial, administrative or regulatory body.
7. Neither the execution, delivery or performance by the Borrower of its
obligations under the Agreement nor compliance by the Borrower with the terms
thereof will contravene any Applicable Order against the Borrower. For purposes
of this paragraph 7, the term "Applicable Orders" means those orders or decrees
of Governmental Authorities identified on Schedule II and which have been
identified to us as all the material orders or decrees binding on the Borrower
or affecting any of the Borrower's properties, assets or business.
8. The Borrower is registered as a closed-end management investment
company under the 1940 Act.
9. To our knowledge, there are no pending or threatened actions, suits,
investigations or proceedings at law or in equity before any federal or state
court, governmental or regulatory authority, agency, commission, board, bureau
or instrumentality, or board of arbitration, against or affecting the Borrower
or its right, title and interest in or to any of its properties or assets an
adverse decision in which could materially and adversely affect the financial
condition or business of the Borrower.
10. We know of no reason why the choice of law provisions of the
Agreement, which set forth Massachusetts law as the governing law, would not be
enforced by the courts of the State of New York, as agreed upon by the parties;
provided, however, that the particular application of such laws does not violate
public policy as applied in New York.
In rendering the foregoing opinions, we have assumed, with your consent,
that:
(a) The Borrower has been duly organized and is validly existing and in
good standing under the laws of the State of Maryland.
(b) The execution, delivery and performance of any of its obligations
under the Agreement does not and will not conflict with, contravene, violate or
constitute a default under (i) any lease, indenture, instrument or other
agreement to which the Borrower or its property is subject (other than the
Applicable Contracts as to which we express our opinion in paragraph 4 herein),
(ii) any rule, law or regulation to which the Borrower is subject (other than
Applicable Laws as to which we express our opinion in paragraph 5 herein), (iii)
any judicial or administrative order or decree of any
3
governmental authority (other than Applicable Orders as to which we express our
opinion in paragraph 7 herein); and
(c) no authorization, consent or other approval of, notice to or filing
with any court, governmental authority or regulatory body (other than
Governmental Approvals as to which we express our opinion in paragraph 6 herein)
is required to authorize or is required in connection with the execution,
delivery or performance by the Borrower of the Agreement or the transactions
contemplated thereby.
Our opinions are also subject to the following assumptions and
qualifications:
(a) enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and by general principles of equity (regardless of whether enforcement
is sought in equity or at law);
(b) we have assumed the Agreement constitutes the legal, valid and binding
obligation of each party to such Agreement (other than the Borrower) enforceable
against such party (other than the Borrower) in accordance with its terms;
(c) we express no opinion as to the effect on the opinion expressed herein
of (i) the compliance or non-compliance of the Bank to the Agreement with any
state, federal or other laws or regulations applicable to it or (ii) the legal
or regulatory status or the nature of the business of the Bank;
(d) we express no opinion as to the enforceability of any rights to
contribution or indemnification provided for in the Agreement that are violative
of public policy underlying any law, rule or regulation (including, any federal
or state securities laws, rule or regulation); and
(e) we express no opinion as to the enforceability of any provision of the
Agreement to the extent it authorizes or permits the Bank or any purchaser of a
participation interest from the Bank to set-off or apply any deposit, property
or indebtedness with respect to any participation interest.
This opinion is being furnished only to you and is solely for your benefit
and is not to be used, circulated, quoted, relied upon or otherwise referred to
by any other Person or for any other purpose without our prior written consent.
Very truly yours,
4
EXHIBIT B-3
FORM OF OPINION OF COUNSEL TO THE BORROWERS
December 15, 1994
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
RE: Amended and Restated Credit Agreement dated as of December 15, 1994 by
and among The First National Bank of Boston and each of The Latin
America Investment Fund, Inc., The Latin America Equity Fund, Inc.,
The Chile Fund, Inc., The Brazilian Equity Fund, Inc., The Portugal
Fund, Inc., The First Israel Fund, Inc., The Indonesia Fund, Inc., The
Emerging Markets Telecommunications Fund, Inc., The Emerging Markets
Infrastructure Fund, Inc. and The RBB Fund, acting on behalf of BEA
Emerging Markets Equity Portfolio, BEA Global Fixed Income Portfolio,
BEA International Equity Portfolio, BEA Municipal Bond Fund Portfolio,
BEA Strategic Fixed Income Portfolio, BEA U.S. Core Equity Portfolio,
and BEA U.S. Core Fixed Income Portfolio.
Gentlemen:
We are counsel to each of The Latin America Investment Fund, Inc., The
Latin America Equity Fund, Inc., The Chile Fund, Inc., The Brazilian Equity
Fund, Inc., The Portugal Fund, Inc., The Indonesia Fund, Inc., The Emerging
Markets Telecommunications Fund, Inc. and The Emerging Markets Infrastructure
Fund, Inc. (each a "BORROWER" and collectively, the "BORROWERS") and have
represented the Borrowers in connection with the preparation, execution and
delivery of the Amended and Restated Credit Agreement dated as of December 15,
1994 (the "AGREEMENT") among The First National Bank of Boston (the "BANK") and
each of the Borrowers and The RBB Fund, Inc. All terms not defined herein and
defined in the Agreement shall have the same meanings herein as in the
Agreement.
We have examined executed counterparts of the Agreement and originals, or
copies, the authenticity of which has been established to our satisfaction, of
such other documents, corporate records, agreements and instruments and
certificates of public officials and officers of the Borrowers as we have deemed
necessary as the basis for the opinions herein expressed. As to the questions
of fact material to such opinions we have, when relevant facts were not
independently established, relied upon certifications by officers of the
Borrowers.
1
Based on the foregoing and having regard for such legal considerations as
we have deemed relevant, and subject to the limitations and qualifications
below, it is our opinion that:
1. Each of the Borrowers is duly organized and validly existing under the
laws of the State of Maryland and is duly qualified to do business in each other
jurisdiction wherein the nature of its properties or its business requires such
qualification and in which the failure to be so qualified may reasonably be
expected to materially adversely affect the business, assets or condition
(financial or otherwise) of such Borrower.
2. Each of the Borrowers is registered as a closed-end management
investment company under the 0000 Xxx.
3. The execution, delivery and performance by each Borrower of the
Agreement are within the corporate powers of such Borrower, have been duly
authorized by all necessary and proper action on the part of such Borrower, and
do not and will not (i) violate or contravene any provision of such Borrower's
charter documents or bylaws, as amended and in effect on the date hereof;
provided, however, that further approval by the Board of Directors of The
Indonesia Fund, Inc. is required with respect to any drawdown by that Fund
aggregating in excess of $500,000, (ii) violate or contravene any provision of
such Borrower's Prospectus or Registration Statement, as applicable, (iii) to
our knowledge, conflict with, or result in a breach of any material term,
condition or provision of, or constitute a default under or result in the
creation of any mortgage, lien, pledge, charge, security interest or other
encumbrance upon any of the property or assets of such Borrower under, any
material agreement, trust deed, indenture, mortgage or other instrument to which
such Borrower is a party or by which such Borrower or any of the property or
assets of such Borrower is bound or affected, or (iv) to our knowledge, violate
or contravene any provision of any material law, regulation, order, ruling or
interpretation thereunder or any decree, order or judgment of any court or
governmental or regulatory authority, bureau, agency or official.
4. The Agreement has been duly executed and delivered by each Borrower.
We know of no reason why the choice of law provisions of the Agreement, which
set forth Massachusetts law as the governing law, would not be enforced by the
courts of the State of Maryland, as agreed upon by the parties; provided,
however, that the particular application of such laws does not violate public
policy as applied in Maryland.
5. No authorization, approval, consent, or other action by, and no notice
to or filing with, any shareholder or creditor of any Borrower, or governmental
or regulatory agency or authority, is required to make valid and legally binding
the execution, delivery and performance by such Borrower of the Agreement or the
consummation by such Borrower of the transactions contemplated by the Agreement,
or the exercise by the Bank of its rights and remedies thereunder.
6. To our knowledge, there are no pending or threatened actions, suits,
investigations or proceedings at law or in equity before any federal or state
court, governmental or regulatory authority, agency, commission, board, bureau
or instrumentality, or board of arbitration, against or affecting any Borrower
or its right, title and interest in or to any or its properties or assets an
adverse decision in which could materially and adversely affect the financial
condition or business of such Borrower.
2
We are members of the Bar of the State of New York only and do not opine as to
the laws of any jurisdiction other than the laws of the State of New York and
the laws of the United States and the opinion set forth above is, accordingly,
limited to the laws of those jurisdictions. As to matters involving the
application of the laws of the State of Maryland, we have relied on the opinion
of even date herewith of Messrs. Xxxxxxx, Xxxxxxx and Xxxxxx that is attached to
this opinion.
This letter and the opinion expressed herein are being furnished solely for
your information and may not be relied upon by any other person without our
prior written consent.
Very truly yours,
3
EXHIBIT B-3
FORM OF OPINION OF SPECIAL MARYLAND COUNSEL TO THE BORROWERS
December 15, 1994
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: Amended and Restated Credit Agreement dated as of December 15, 1994 by
and among The First National Bank of Boston and each of The Latin
America Investment Fund, Inc., The Latin America Equity Fund, Inc.,
The Chile Fund, Inc., The Brazilian Equity Fund, Inc., The Portugal
Fund, Inc., The First Israel Fund, Inc., The Indonesia Fund, Inc., The
Emerging Markets Telecommunications Fund, Inc., The Emerging Markets
Infrastructure Fund, Inc. and The RBB Fund, acting on behalf of BEA
Emerging Markets Equity Portfolio, BEA Global Fixed Income Portfolio,
BEA International Equity Portfolio, BEA Municipal Bond Fund Portfolio,
BEA Strategic Fixed Income Portfolio, BEA U.S. Core Equity Portfolio,
and BEA U.S. Core Fixed Income Portfolio.
Ladies and Gentlemen:
We have served as special Maryland counsel to each of The Latin America
Investment Fund, Inc., The Latin America Equity Fund, Inc., The Chile Fund,
Inc., The Brazilian Equity Fund, Inc., The Portugal Fund, Inc., The First Israel
Fund, Inc., The Indonesia Fund, Inc., The Emerging Markets Telecommunications
Fund, Inc. and The Emerging Markets Infrastructure Fund, Inc. (each a "BORROWER"
and collectively, the "BORROWERS") in connection with the Amended and Restated
Credit Agreement dated as of December 15, 1994 (the "AGREEMENT") among The First
National Bank of Boston (the "BANK"), each of the Borrowers and The RBB Fund,
Inc., acting on behalf of its various portfolios described above. We have not
served as counsel to, and this opinion is not rendered on behalf of, The RBB
Fund, Inc. or its various portfolios. All terms not defined herein and defined
in the Agreement shall have the same meanings herein as in the Agreement.
We have examined the Borrowers' respective Charters and Bylaws and such
other documents, corporate records, and instruments as we have deemed necessary
as the basis for the opinions herein expressed. We have relied upon a
certificate of the Secretary of each of the Borrowers with respect to their
respective Bylaws, their form of the Agreement, and actions taken by their
Boards of Directors with respect to the Agreement. We have also relied upon
certificates of the Maryland State
1
Department of Assessments and Taxation to the effect that the Borrowers are duly
incorporated and existing under the laws of the State of Maryland and in good
standing and duly authorized to transact business in the State of Maryland. We
have assumed, without independent verification and the genuineness of
signatures, the authenticity of all documents furnished to us, and the
conformity of copies to the originals.
Based on the foregoing and subject to the limitations and qualifications
below, it is our opinion that:
1. Each of the Borrowers is duly organized and validly existing under the
laws of the State of Maryland.
2. The execution, delivery and performance by each Borrower of the
Agreement are within the corporate powers of such Borrower, have been duly
authorized by all necessary and proper action on the part of such Borrower, and
do not and will not violate or contravene any provision of such Borrower's
Charter or Bylaws, as amended and in effect on the date hereof; provided,
however, that further approval by the Board of Directors of The Indonesia Fund,
Inc. is required with respect to any drawdown by that Fund aggregating in excess
of $500,000.
3. We know of no reason why the choice of law provisions of the Agreement,
which set forth Massachusetts law as the governing law, would not be enforced by
the courts of the State of Maryland, as agreed upon by the parties; provided,
however, that the particular application of such laws does not violate public
policy as applied in Maryland.
The Charters and Bylaws of the Borrowers require compliance with various
provisions of the Investment Company Act of 1940. We express no opinion with
respect to such compliance.
This letter expresses our opinion with respect to the Maryland General
Corporation Law governing the matters set forth above. It does not extend to
the securities or "Blue-Sky" laws of Maryland, to federal securities laws, or to
other laws.
You may each rely upon our foregoing opinion in rendering your respective
opinions to the Bank pursuant to the Agreement.
Very truly yours,
2
