EXHIBIT (h)(12)
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EXCELSIOR FUNDS, INC.,
EXCELSIOR TAX-EXEMPT FUNDS, INC.
AND EXCELSIOR INSTITUTIONAL TRUST
ON BEHALF OF EACH SERIES
OR PORTFOLIO NAMED XXXXXX
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$250,000,000
CREDIT AGREEMENT
Dated as of December 27, 1999
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THE CHASE MANHATTAN BANK,
as Administrative Agent,
CHASE SECURITIES INC.,
as Sole Book Manager and Lead Arranger
And
THE BANK OF NOVA SCOTIA,
as Syndication Agent
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS.......................................................................................... 1
1.1 Defined Terms............................................................................................. 1
1.2 Other Definitional Provisions............................................................................. 8
1.3 Assumptions Regarding Structure........................................................................... 8
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................................................... 8
2.1 Commitments............................................................................................... 9
2.2 Procedure for Borrowing................................................................................... 9
2.3 Fees...................................................................................................... 9
2.5 Repayment of Loans; Evidence of Debt...................................................................... 10
2.6 Optional and Mandatory Prepayments........................................................................ 11
2.7 Interest Rates and Payment Dates.......................................................................... 12
2.8 Computation of Interest and Fees.......................................................................... 12
2.9 Pro Rata Treatment and Payments........................................................................... 13
2.10 Requirements of Law...................................................................................... 14
2.11 Taxes.................................................................................................... 14
2.12 Change of Lending Office; Replacement of Lender.......................................................... 16
2.13 Swing Line Commitment...............................................................Error! Bookmark not defined.
2.14 Procedure for Swing Line Borrowing....................................................................... 17
2.15 Refunding of Swing Line Loans............................................................................ 17
2.16 Designation of Additional Borrowers; Amendments to Schedule I............................................ 18
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................................................... 19
3.1 Financial Condition....................................................................................... 19
3.2 No Change................................................................................................. 19
3.3 Existence; Compliance with Law............................................................................ 19
3.4 Power; Authorization; Enforceable Obligations............................................................. 20
3.5 No Legal Bar.............................................................................................. 20
3.6 No Material Litigation.................................................................................... 20
3.7 No Default................................................................................................ 20
3.8 Ownership of Property; Liens.............................................................................. 20
3.9 No Burdensome Restrictions................................................................................ 21
3.10 Taxes.................................................................................................... 21
3.11 Federal Regulations...................................................................................... 21
3.12 ERISA.................................................................................................... 21
3.13 Certain Regulations...................................................................................... 21
3.14 Subsidiaries............................................................................................. 21
3.15 Registration of the Funds................................................................................ 21
3.16 Offering in Compliance with Securities Laws.............................................................. 21
3.17 Investment Policies...................................................................................... 22
3.18 Permission to Borrow..................................................................................... 22
3.19 Accuracy of Information.................................................................................. 22
3.20 Affiliated Persons....................................................................................... 22
3.21 Year 2000................................................................................................ 20
SECTION 4. CONDITIONS PRECEDENT.................................................................................. 22
4.1 Conditions to Initial Loans.............................................................................. 23
4.2 Conditions to Each Loan................................................................................... 24
SECTION 5. AFFIRMATIVE COVENANTS................................................................................ 25
5.1 Financial Statements...................................................................................... 25
5.2 Certificates; Other Information......................................................................... 26
5.3 Payment of Obligations.................................................................................... 27
5.4 Conduct of Business and Maintenance of Existence.......................................................... 27
5.5 Maintenance of Property; Insurance........................................................................ 27
5.6 Inspection of Property; Books and Records; Discussions.................................................... 28
5.7 Notices................................................................................................... 28
5.8 Purpose of Loans.......................................................................................... 29
SECTION 6. NEGATIVE COVENANTS................................................................................... 29
6.1 Financial Condition Covenant.............................................................................. 29
6.2 Limitation on Indebtedness................................................................................ 29
6.3 Limitation on Liens....................................................................................... 29
6.4 Limitation on Guarantee Obligations....................................................................... 30
6.5 Limitation on Fundamental Changes......................................................................... 30
6.6 Limitation on Distributions............................................................................... 30
6.7 Limitation on Investments, Loans and Advances............................................................. 31
6.8 Limitation on Transactions with Affiliates................................................................ 31
6.9 Limitation on Negative Pledge Clauses..................................................................... 31
6.10 Limitation on Changes to Investment Policies............................................................. 31
SECTION 7. EVENTS OF DEFAULT.................................................................................... 31
SECTION 8. THE ADMINISTRATIVE AGENT............................................................................. 34
8.1 Appointment............................................................................................... 34
8.2 Delegation of Duties...................................................................................... 34
8.3 Exculpatory Provisions.................................................................................... 35
8.4 Reliance by Administrative Agent.......................................................................... 35
8.5 Notice of Default......................................................................................... 35
8.6 Non-Reliance on Administrative Agent and Other Lenders.................................................... 36
8.7 Indemnification........................................................................................... 36
8.8 Administrative Agent in Its Individual Capacity........................................................... 37
8.9 Successor Administrative Agent............................................................................ 37
SECTION 9. MISCELLANEOUS........................................................................................ 37
9.1 Amendments and Waivers.................................................................................... 37
9.2 Notices................................................................................................... 38
9.3 No Waiver; Cumulative Remedies............................................................................ 39
9.4 Survival of Representations and Warranties................................................................ 39
9.5 Payment of Expenses and Taxes; Indemnification............................................................ 39
9.6 Successors and Assigns; Participations and Assignments.................................................... 40
9.7 Adjustments; Set-off...................................................................................... 42
9.8 Counterparts.............................................................................................. 43
9.9 Severability.............................................................................................. 43
9.10 Integration.............................................................................................. 43
9.11 GOVERNING LAW............................................................................................ 43
9.12 Submission To Jurisdiction; Waivers...................................................................... 43
9.13 Acknowledgements......................................................................................... 44
9.14 WAIVERS OF JURY TRIAL.................................................................................... 44
9.15 Non-Recourse............................................................................................. 45
9.16 Waiver of Conflicts; Confidentiality..................................................................... 40
SCHEDULES:
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Schedule I Borrowers & Allocations
Schedule II Commitments, Addresses, Etc.
Schedule III Investment Management Agreements
Schedule IV Custodian Agreements
Schedule V Distribution Agreements
Schedule VI Shareholder Services Agreements
EXHIBITS:
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Exhibit 2.5(e) Form of Note
Exhibit 2.16(a) Form for Designation of New Borrowers
Exhibit 4.1(h) Form of Opinion
Exhibit 9.6(c) Form of Assignment and Acceptance
CREDIT AGREEMENT, dated as of December 27, 1999 (this "Agreement") among (i)
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each fund signatory hereto (each a "Fund" and, collectively, the "Funds") on
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behalf of the series or portfolios of the Fund, which series and portfolios are
listed on Schedule I beside the name of the Fund of which each series or
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portfolio is a series or portfolio (each such series or portfolio, a "Borrower"
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and, collectively, the "Borrowers"), (ii) the several banks and other financial
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institutions from time to time parties to this Agreement (the "Lenders"), (iii)
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THE BANK OF NOVA SCOTIA as Syndication Agent, and (iv) THE CHASE MANHATTAN BANK,
a New York banking corporation, as administrative agent for the Lenders
hereunder (in such capacity, the "Administrative Agent");
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W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, each Fund is an open-end registered investment company under the
Investment Company Act of 1940 for which UST (as defined below) acts as an
investment manager;
WHEREAS, each Borrower has requested the Lenders to make Loans (as
hereinafter defined) severally to each Borrower and to make available to it a
credit facility for the purposes and on the terms and conditions set forth
herein; and
WHEREAS, each Lender acknowledges that each Borrower shall be liable
hereunder only for the Loans made to such Borrower hereunder and interest
thereon and for the fees and expenses associated therewith and as otherwise set
forth herein;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall
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have the following meanings:
"Administrative Agent": The Chase Manhattan Bank, together with its
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affiliates, as the arranger of the Commitments and as the administrative agent
for the Lenders under this Agreement and the other Loan Documents.
"Affiliate": as to any Person, any other Person (other than a
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Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to (a)
vote 10% or more of the securities having ordinary voting power for the election
of directors of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aggregate Commitment": the total of all Commitments of all Lenders, as
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may be reduced from time to time in the accordance with the terms of this
Agreement. On the Closing
Date at the time of closing, the Aggregate Commitment shall be equal to
$250,000,000.
"Agreement": this Credit Agreement, as amended, restated, supplemented
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or otherwise modified from time to time.
"Allocation": as to each Borrower, the percentage amount stated in
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Schedule I to this Agreement; provided that, if no Event of Default shall have
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occurred and be continuing, the Funds, on behalf of the Borrowers and without
the consent of the Lenders, by written notice to the Administrative Agent, may
change the Allocations from time to time in the Funds' sole discretion
substantially in accordance with changes in the ratio of each Borrower's Average
Net Assets to the aggregate Average Net Assets of all Borrowers; provided
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further, that, after any such change in Allocations, the aggregate amount of all
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Allocations shall equal 100%.
"Applicable Margin": 0.5% per annum.
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"Asset Coverage Ratio": with respect to any Borrower, the ratio which
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the value of the Total Assets of such Borrower less all liabilities and
indebtedness not represented by Senior Securities, bears to the aggregate amount
of all Senior Securities representing Indebtedness of such Borrower. For the
purposes of calculating the Asset Coverage Ratio, the amount of any liability or
indebtedness deducted from Total Assets shall be equal to the greater of (x) the
outstanding amount of such liability or indebtedness and (y) the fair market
value of all assets securing such liability or indebtedness.
"Assignee": as defined in Section 9.6(c).
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"Available Commitment": as to any Lender with respect to any Borrower
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at any time, an amount equal to the excess, if any, of (a) the amount of such
Xxxxxx's Commitment to such Borrower less (b) the aggregate principal amount of
all Loans to such Borrower made by such Lender then outstanding; collectively,
as to all the Lenders, the "Available Commitments".
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"Average Net Assets": As to any Borrower at any date, an amount equal
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to the average daily value of the aggregate net assets of such Borrower during
the specified period, determined in the manner and at the times specified in
that Xxxxxxxx's Prospectus.
"Benefited Lender": as defined in Section 9.7(a).
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"Borrower" and "Borrowers": as defined in the preamble hereto.
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"Borrowing Date": any Business Day specified in a notice pursuant to
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Section 2.2 as a date on which a Borrower requests the Lenders to make Loans
hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
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which commercial banks in New York City are authorized or required by law to
close.
"Chase": The Chase Manhattan Bank, a New York banking corporation,
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and its permitted successors and assigns.
"Closing Date": the date on which the conditions precedent set forth
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in Section 4.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
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time.
"Commitment": as to any Lender, the obligation of such Lender to make
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Loans to the Borrowers hereunder in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Xxxxxx's name
on Schedule II.
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"Commitment Fee": as defined in Section 2.3.
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"Commitment Percentage": as to any Lender at any time, the percentage
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which such Xxxxxx's Commitment then constitutes of the aggregate Commitments of
all Lenders (or, at any time after the Commitments of all the Lenders shall have
expired or terminated, the percentage which the aggregate principal amount of
such Lender's Loans then outstanding constitutes of the aggregate principal
amount of the Loans then outstanding).
"Commitment Period": the period from and including the date hereof to,
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but not including, the Termination Date.
"Commonly Controlled Entity": an entity, whether or not incorporated,
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which is under common control with any Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes any Borrower and which is
treated as a single employer under Section 414 of the Code.
"Contractual Obligation": as to any Person, any provision of any
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security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Custody Agreement": as to any Fund or each Borrower, as applicable,
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the Custody Agreement(s) set forth in Schedule IV hereto.
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"Default": any of the events specified in Section 7, whether or not
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any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Distribution Agreement": as to any Fund or each Borrower, as
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applicable, the Distribution Agreement(s) set forth in Schedule V hereto.
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"Dollars" and "$": dollars in lawful currency of the United States of
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America.
"Eligible Lender": an entity that is a "Bank" (as defined in the 1940
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Act) but not an "Affiliated Person" (as defined in the 1940 Act) or a "Principal
Underwriter" (as defined in the 1940 Act) of any Borrower or any "Affiliated
Person" of any such Person.
"ERISA": the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
"Event of Default": any of the events specified in Section 7, provided
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that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Federal Funds Rate": for any day, the "offered rate", as determined
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by Chase, for overnight federal funds, which rate is determined day to day and
will be reasonably representative of the market conditions at the times set.
"Financing Lease": any lease of property, real or personal, the
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obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"GAAP": generally accepted accounting principles in the United States
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of America in effect from time to time.
"Governmental Authority": any nation or government, any state or other
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political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
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any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
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of any other third Person (the "primary obligor") in any manner, whether
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directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (A) for the purchase or payment of any such
primary obligation or (B) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
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Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by such guaranteeing person in good faith.
"Indebtedness": of any Person at any date, (a) all indebtedness of such
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Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar debt instrument, (c) all obligations of such Person under Financing
Leases, (d) all obligations of such Person in respect of acceptances (as defined
in Section 3-410 of the UCC) issued or created for the account of such Person,
(e) all reimbursement obligations of such person arising out of any letters of
credit and (f) all liabilities secured by any Lien on any property owned by such
Person even though such Person has not assumed or otherwise become liable for
the payment thereof.
"Interest Payment Date": as to any Loan, the Maturity Date for such
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Loan, or with respect to any prepayment, the date of such prepayment.
"Investment Management Agreement": as to each Fund and each Borrower,
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the Investment Management Agreements set forth on Schedule III hereto.
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"Investment Policies": as to each Borrower, the policies and
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objectives for, and limits and restrictions on, investing by such Borrower set
forth in the Prospectus relating to such Borrower.
"Lenders": as defined in the preamble hereto.
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"Lien": any mortgage, pledge, hypothecation, assignment, deposit
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arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
"Loan Documents": this Agreement and the Notes.
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"Loans": all loans made pursuant to this Agreement; individually, a
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"Loan".
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"Material Adverse Effect": a material adverse effect on (a) the
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business, financial condition or ability to timely perform any of its material
obligations under the Loan Documents of a Borrower or (b) the legality,
validity, binding nature or enforceability of the Loan Documents or the rights
or remedies of the Administrative Agent or the Lenders under the Loan Documents.
"Maturity Date": as to each Loan, the date which is the earliest of (a)
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30 days after the Borrowing Date for such Loan (except that, with respect to any
Swingline Loan, the Maturity Date shall be the seventh day after the Borrowing
date therefor), (b) the Termination Date and (c) the payment in full of such
Loan.
"Moody's": Xxxxx'x Investor Service, Inc.
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"1940 Act": the Investment Company Act of 1940, as amended, together
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with all rules and regulations promulgated from time to time thereunder.
"Non-Excluded Taxes": as defined in Section 2.11.
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"Non-Recourse Person": as defined in Section 9.15.
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"Notes": the collective reference to the Revolving Credit Notes; one
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of the Notes, a "Note".
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"Participant": as defined in Section 9.6(b).
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"Person": an individual, partnership, corporation, business trust,
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joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan covered by
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ERISA which any Fund or any Borrower maintains.
"Prospectus": as to each Borrower at a particular time, shall mean the
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currently effective prospectus(es) and statement(s) of additional information of
such Borrower.
"Register": as defined in Section 9.6(d).
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"Regulation T": Regulation T of the Board of Governors of the Federal
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Reserve System as in effect from time to time.
"Regulation U": Regulation U of the Board of Governors of the Federal
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Reserve System as in effect from time to time.
"Regulation X": Regulation X of the Board of Governors of the Federal
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Reserve System as in effect from time to time.
"Required Lenders": at any time, Lenders the Commitment Percentages of
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which aggregate more than 50%.
"Requirement of Law": as to any Person, the certificate of
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incorporation, by-laws, partnership agreement, or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": the president, treasurer, assistant treasurer,
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or secretary of each Fund, or, with respect to financial matters, the treasurer
or assistant
treasurer of each Fund; provided, however, that as used in (i) Section 5.1(c)
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and (ii) with respect to the certificate required to accompany the financial
statements referred to in Section 5.1(c) only, Section 5.2(b), "Responsible
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Officer" shall also include the following officers of U.S. Trust Company of
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Connecticut: Xxxxx Xxxxxxx, Vice President; Xxxxx Xxxxx, Vice President; and
Xxxxx XxXxxxx, Financial Officer.
"Revolving Credit Loan": as defined in Section 2.1.
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"Revolving Credit Note": as defined in Section 2.5(e).
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"S&P": Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx
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Companies.
"Senior Securities Representing Indebtedness": any Senior Security
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other than stock.
"Senior Security": any bond, debenture, note or similar obligation or
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instrument constituting a security and evidencing indebtedness (including,
without limitation, all Loans under this Agreement), and any share of beneficial
interest of a Borrower of a class having priority over any other class of shares
of such Borrower as to distribution of assets or payment of dividends.
"Shareholder Services Agreement": as to each Fund or each Borrower, as
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applicable, the Shareholder Services Agreement(s) set forth in Schedule VI
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hereto.
"Subsidiary": as to any Person, a corporation, partnership or other
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entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person.
"Swing Line Commitment": the obligation of the Swing Line Lender to
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make Swing Line Loans pursuant to Section 2.13 hereof in the aggregate principal
amount at any one time outstanding not to exceed $10,000,000.
"Swing Line Lender": as defined in Section 2.13 hereof.
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"Swing Line Loans": as defined in Section 2.13 hereof.
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"Swing Line Participation Amount": as defined in Section 2.15(c)
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hereof.
"Termination Date": the date which is 364 days following the Closing
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Date or such earlier date on which the Commitments shall terminate as provided
herein.
"Total Assets": at any time, all assets of a Borrower which in
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accordance with
GAAP would be classified as assets on a balance sheet of such Borrower prepared
as of such time; provided, however, that the term Total Assets shall not include
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(a) equipment, (b) securities owned by a Borrower which are in default and (c)
deferred organizational and offering expenses.
"Transferee": as defined in Section 9.6(f).
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"UCC": the Uniform Commercial Code as from time to time in effect in
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the State of New York.
"UST": United States Trust Company of New York, a New York state
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chartered bank and trust company, U.S. Trust Company, a Connecticut state bank
and trust company, and U.S. Trust Company, N.A., a national bank acting as
investment manager for the Borrowers as indicated on Schedule III hereto.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein,
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all terms defined in this Agreement shall have the defined meanings when used in
any Notes or any certificate or other document made or delivered pursuant
hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to any
Borrower not defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the respective meanings given
to them under GAAP (as consistently applied).
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
1.3 Assumptions Regarding Structure. For the sake of clarity and
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construction, the parties hereto hereby set forth their acknowledgment and
agreement that each Borrower is a separate portfolio of the Fund acting on its
behalf and as such is not a separately existing legal entity entitled to enter
into contractual agreements or to execute instruments and for these reasons,
each Fund acting on behalf of a Borrower is executing this Agreement and each
respective Note on behalf of its portfolios, as Borrowers, and that such
portfolios will utilize the Loans thus made on their behalf. No Fund shall make
any designation, provide any notice or take any other action on behalf of any
Borrower that is not an investment portfolio of such Fund.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. Subject to the terms and conditions hereof, each Lender
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severally agrees to make revolving credit loans ("Revolving Credit Loans")
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to each Borrower, from time to time during the Commitment Period in an aggregate
principal amount at any one time
outstanding not to exceed the amount of such Xxxxxx's Commitment. During the
Commitment Period each Borrower may use Commitments by borrowing, prepaying
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof; provided that at no time may the aggregate principal amount
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of Revolving Credit Loans and Swing Line Loans to all Borrowers exceed the
Aggregate Commitment.
2.2 Procedure for Borrowing. A Borrower may borrow under the Commitments
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during the Commitment Period on any Business Day, provided that the Borrower
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shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 12:00 Noon, New York City time on
the requested Borrowing Date), specifying (i) the amount to be borrowed, and
(ii) the requested Borrowing Date. The aggregate amount of each borrowing by a
Borrower under the Commitments on any Borrowing Date shall be in an amount equal
to $2,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the
then Available Commitments are less than $1,000,000, such lesser amount). Upon
receipt of any such notice from a Borrower, the Administrative Agent shall
promptly notify each Lender thereof. Each Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for the
account of such Borrower at the office of the Administrative Agent specified in
Section 9.2 prior to 3:00 P.M., New York City time, on the Borrowing Date
requested by such Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to such Borrower on such
Borrowing Date by the Administrative Agent transferring by wire to the custodian
of and for the account of such Borrower the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent; provided that if, on the Borrowing Date of
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any Revolving Credit Loans of a Borrower, any Swing Line Loans to such Borrower
shall be outstanding, the proceeds of such Revolving Credit Loans to such
Borrower shall first be applied to pay in full such Swing Line Loans, with any
remaining proceeds to be made available to such Borrower as provided above.
2.3 Fees. (a) Each Borrower severally agrees to pay to the Administrative
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Agent for the account of each Lender such Borrower's pro rata Allocation (as
adjusted from time to time in accordance with the terms hereof) of a commitment
fee ("Commitment Fee") during the period which shall begin on the first day of
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the Commitment Period and shall extend to the Termination Date, which Commitment
Fee shall be a quarterly fee, computed at the rate of .10% per annum on the
average daily amount of the Available Commitments of all Lenders in the
aggregate during each calendar quarter. Such Commitment Fee shall be payable
quarterly in arrears on the last Business Day of each March, June, September and
December and on the Termination Date, commencing on the first of such dates to
occur after the date hereof. Solely for the purpose of calculating the
Commitment Fee, Swing Line Loans will not be deemed a utilization of the
Aggregate Commitments of all Lenders.
(b) Each Borrower severally agrees to pay the Administrative Agent for
the account of the Administrative Agent the fees separately agreed to.
2.4 Termination or Reduction of Commitments. (a) Each Borrower shall have
---------------------------------------
the right, upon not less than three Business Days' notice to the Administrative
Agent, to terminate all Commitments with respect to such Borrower. Any
termination of all Commitments to a
Borrower shall be accompanied by prepayment in full of the Loans to such
Borrower then outstanding, and payment of such Borrower's Allocation of (i) any
accrued Commitment Fees payable by such Borrower hereunder and (ii) any other
accrued fees, expenses or indemnified liabilities payable by such Borrower
hereunder. The amount of the Aggregate Commitment shall not be affected by any
Borrower's termination. Prior to such termination, the Funds shall notify the
Administrative Agent in writing as to the Allocations of the remaining
Borrowers, effective as of the termination.
(b) Interest accrued on the amount of any prepayment relating to such
termination and any unpaid Commitment Fee accrued hereunder shall be paid on the
date of such termination.
(c) Upon the effective date of such termination, the terminating
Borrower shall no longer be obligated to pay Commitment Fees hereunder or any
share of any other fees, expenses, or indemnified liabilities that may accrue
thereafter (except in connection with indemnification obligations with respect
to events arising prior to such termination, payment for which is not sought by
the indemnified party until after such termination), and such payment
obligations accruing after the date of such termination shall be allocated among
the remaining Borrowers.
(d) The Borrowers shall have the right, upon not less than three
Business Days' notice to the Administrative Agent, to reduce irrevocably the
Commitments of the Lenders with respect to all Borrowers. Any such reduction
shall be accompanied by prepayment in full of any amount by which the Loans
exceed the reduced Commitments then outstanding. Prior to such reduction
becoming effective, the Funds shall notify the Administrative Agent in writing
as to the Allocations of the Borrowers, effective as of the reduction.
2.5 Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
------------------------------------
severally (and neither jointly nor jointly and severally) and unconditionally
promises to pay to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Loan of such Lender to such Borrower on the
Maturity Date for such Loan (or such earlier date on which the Loans become due
and payable pursuant to Section 7). Each Borrower hereby further severally
agrees to pay to the Administrative Agent for the account of each Lender
interest on the unpaid principal amount of the Loans to such Borrower from time
to time outstanding from the date hereof until payment in full thereof at the
rates per annum, and on the dates, set forth in Section 2.7.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of each Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 9.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) both the amount
of any sum received by the Administrative Agent hereunder from each Borrower and
each Xxxxxx's share thereof. The Administrative Agent shall provide a copy of
the Register to each Borrower upon request.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.5(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
----- -----
obligations of the Borrower therein recorded, provided, however, that the
-------- -------
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of any Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(e) Each Fund agrees that, upon the request of any Lender to the
Administrative Agent, such Fund will execute and deliver to such Lender a
promissory note of each Borrower evidencing the Loans of such Lender to such
Borrower, substantially in the form of Exhibit 2.5(e) with appropriate
--------------
insertions as to date and principal amount (a "Revolving Credit Note").
---------------------
(f) The obligations of each Borrower under its Notes shall be several
and not joint or joint and several. Notwithstanding anything to the contrary
contained in this Agreement, the parties hereto acknowledge and agree that the
sole source of payment of the obligations of each Borrower hereunder, including,
without limitation, the principal of and interest on each Loan made hereunder to
any Borrower, the Commitment Fee payable pursuant to Section 2.3 and any other
amounts attributable to the Loans made hereunder to any Borrower shall be the
revenues and assets of such Borrower, and not the revenues and assets of any
other Borrower or the revenues and assets of a Fund acting on behalf of a
Borrower (except to the extent of such Borrower).
2.6 Optional and Mandatory Prepayments. (a) Each Borrower may prepay
----------------------------------
the Loans made to it, in whole or in part, without premium or penalty, upon at
-------
least one Business Day's irrevocable notice to the Administrative Agent,
specifying the date and amount of prepayment. Upon receipt of any such notice
the Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein. Partial prepayments shall be in an aggregate
principal amount of $100,000 or an integral multiple of $100,000 in excess
thereof.
(b) If, at any time and from time to time, either (i) the Asset
Coverage Ratio for all borrowings of a Borrower shall be less than 300% or (ii)
the aggregate amount of Loans made to a Borrower then outstanding exceeds the
borrowing limits provided in such Borrower's Prospectus, then within three
Business Days thereafter such Borrower shall repay Loans made to such Borrower
to the extent necessary to ensure that (x) the Asset Coverage Ratio of all
borrowings of such Borrower after such payments is in compliance with applicable
covenants concerning minimum Asset Coverage Ratios set forth in this Agreement
or (y) the aggregate amount of Loans made to such Borrower then outstanding does
not after such payments exceed such limits, as the case may be.
2.7 Interest Rates and Payment Dates. (a) Each Loan shall bear interest
--------------------------------
at a rate per annum equal to the Federal Funds Rate plus the Applicable Margin.
In addition, during the period from December 1, 1999 to January 31, 2000, if a
Lender's cost of funds exceeds the Federal Funds Rate, then the Federal Funds
Rate shall be adjusted upwards in an amount, not to exceed 1.50% per annum,
equal to the excess of such Xxxxxx's cost of funding over the Federal Funds
Rate. If any Lender becomes entitled to claim any such additional amounts, it
shall promptly notify the Borrowers (with a copy to the Administrative Agent) of
the event by reason of which it has become so entitled by providing a
certificate setting forth in reasonable detail the basis for the claim for
additional amounts, the amounts required to be paid by the Borrowers to such
Lender, and the computations made by such Lender to determine the amounts;
provided that such Lender shall not be required to disclose any confidential
information. Failure or delay on the part of any Lender to demand compensation
pursuant hereto shall not constitute a waiver of such Xxxxxx's right to demand
such compensation; provided that a Lender claiming such compensation pursuant to
this Section 2.7 must have made its demand for such compensation on or before
March 15, 2000.
(b) Notwithstanding any provision to the contrary contained herein,
(i) upon the occurrence and continuance of any Event of Default specified in
Section 7(e) with respect to a Borrower or (ii) upon notice given by the
Administrative Agent or the Required Lenders to the Borrower of any other Event
of Default, all Loans outstanding to such Borrower shall bear interest at a rate
per annum which is the rate that would otherwise be applicable thereto pursuant
to the provisions of section 2.7(a), plus 2% per annum. If all or a portion of
(i) the principal amount of any Loan, (ii) any interest payable thereon or (iii)
any Commitment Fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
section 2.7(a) plus 2% per annum from the date of such non-payment until such
amount is paid in full (before as well as after judgment).
(c) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to the second sentence of
--------
paragraph (b) of this section 2.7 shall be payable from time to time on demand.
2.8 Computation of Interest and Fees. (a) Commitment Fees and interest
--------------------------------
shall be calculated on the basis of a 360-day year for the actual days elapsed.
Any change in the interest rate on a Loan resulting from a change in the Federal
Funds Rate shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on each Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of a Borrower, deliver to such
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.7(a).
2.9 Pro Rata Treatment and Payments. (a) Each borrowing by a Borrower
-------------------------------
from the Lenders hereunder, each payment by a Borrower on account of any
Commitment Fee hereunder and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Commitment Percentages of the
Lenders. Each payment (including each prepayment) by a Borrower on account of
principal of and interest on the Loans shall be made pro rata according to the
respective outstanding principal amounts of the Loans of such Borrower then held
by the Lenders. All payments (including prepayments) to be made by a Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without set off or counterclaim and shall be made no later than 10:00
A.M., New York City time, on the due date thereof to the Administrative Agent,
for the account of the Lenders, at the Administrative Agent's office specified
in Section 9.2 hereof, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment hereunder becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Commitment Percentage of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Fund on behalf of the requesting Borrower a corresponding amount. If such
amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this Section shall be conclusive in the absence of manifest error. If such
Lender's Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount
with interest thereon at the rate per annum applicable to Loans hereunder, on
demand, from the relevant Borrower (and such Borrower may borrow under the
Commitments or under the Swing Line Commitment to satisfy such demand; provided
--------
that, for purposes of determining the Available Commitment, the Commitment of
any non-funding Lender shall be excluded).
2.10 Requirements of Law. (a) If any Lender shall have determined that
-------------------
the adoption of or any change in any Requirement of Law of any Governmental
Authority regarding capital adequacy or in the interpretation or application
thereof or compliance by such Lender or any corporation controlling such Lender
with any request or directive regarding capital adequacy (whether or not having
the force of law) from any Governmental Authority made subsequent to the date
hereof shall have the effect of reducing the rate of return on such Lender's or
such corporation's capital as a consequence of its obligations hereunder to a
level below that which such Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to
capital adequacy) by an amount determined by such Lender to be material, then
from time to time, each Borrower shall promptly pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
(b) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section, it shall promptly notify the Borrowers (with a copy to
the Administrative Agent) of the event by reason of which it has become so
entitled by providing a certificate setting forth in reasonable detail the basis
for the claim for additional amounts, the amounts required to be paid by the
Borrowers to such Lender, and the computations made by such Lender to determine
the amounts; provided that such Lender shall not be required to disclose any
--------
confidential information. Such certificate as to any additional amounts payable
pursuant to this Section submitted by such Lender to the Borrowers (with a copy
to the Administrative Agent) shall be conclusive in the absence of manifest
error. The agreements in this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
No Borrower shall be responsible to compensate such Lender for additional
amounts attributable to another Borrower's loans.
(c) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrowers shall not be required to
--------
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender
notifies the Borrower of the change in the Requirement of Law giving rise to
such increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided further that, if the change in the Requirement
-------- -------
of Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
2.11 Taxes. (a) All payments made by any Borrower under this Agreement
-----
and any Notes shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding all present and future income taxes and
franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former connection
between the Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or any
Note). If any such non-excluded taxes, levies, imposts, duties, charges, fees
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
------------------
from any amounts payable to the Administrative Agent or any Lender hereunder or
under any Note, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the Administrative
Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that a Borrower shall not be required to
-------- -------
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply
with the requirements of paragraph (b) of this Section. Whenever any Non-
Excluded Taxes are payable by a Borrower, as promptly as possible thereafter
such Borrower shall send to the Administrative Agent for its own account or for
the account of such Lender, as the case may be, a certified copy of an original
official receipt received by such Borrower showing payment thereof. If a
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, such Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) deliver to UST and the Administrative Agent (A) two duly
completed copies of United States Internal Revenue Service Form 1001 or
4224, or successor applicable form, as the case may be, and (B) an Internal
Revenue Service Form W-8 or W-9, or successor applicable form, as the case
may be;
(ii) deliver to UST and the Administrative Agent two further copies
of any such form or certification on or before the date that any such form
or certification expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously delivered by it
to UST; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by UST or the
Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises UST and the Administrative
Agent. Such Lender shall certify (A) in the case of a Form 1001 or 4224, that it
is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (B) in the case of a
Form W-8 or W-9, that it is entitled to an exemption from United States backup
withholding tax. Each Person that shall become a Lender or a Participant
pursuant to Section 9.6 shall, upon the effectiveness of the related transfer,
be required to provide all of the forms and statements required pursuant to this
Section, provided that in the case of a Participant such Participant shall
furnish all such required forms and statements to the Lender from which the
related participation shall have been purchased.
2.12 Change of Lending Office; Replacement of Lender. (a) Each Lender
-----------------------------------------------
agrees that if it makes any demand for payment under Section 2.10, or 2.11 it
will use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be disadvantageous
to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
obviate the need for a Borrower to make payments under Section 2.10 or 2.11.
(b) If any Lender shall have required compensation pursuant to
Section 2.10, the Borrowers shall have the right, with the consent of the
Administrative Agent (which shall not be unreasonably withheld), to substitute
such Lender with an Eligible Lender (a "Replacement Lender") satisfactory to the
------------------
Borrowers (which may be one or more of the Lenders if they, in their sole
discretion, elect to become such Replacement Lender) to assume the Commitment of
such Lender and to purchase the Notes held by such Lender, if any, for an amount
equal to the principal of, and accrued and unpaid interest on, such Notes,
together with any costs reasonably incurred by such Lender in connection with
its sale of such Notes and the assignment of such Commitment (without recourse
to or warranty by such Lender and subject to all amounts owing to such Lender
under this Agreement having been paid in full). Upon the exercise of such right
by the Borrower and the satisfaction of such conditions thereto, such Lender
shall convey its interest to the Replacement Lender in accordance with the
procedures set forth in Section 9.6(c).
2.13 Swing Line Commitment. Subject to the terms and conditions hereof,
---------------------
Chase (in such capacity, the "Swing Line Lender") agrees to make available to
-----------------
each Borrower a portion of the credit otherwise available under the Commitments
from time to time during the Commitment Period by making swing line loans
("Swing Line Loans") to such Borrower in an aggregate principal amount not to
----------------
exceed at any one time outstanding the Swing Line Commitment (notwithstanding
that the Swing Line Loans outstanding at any time, when aggregated with the
Swing Line Lender's other outstanding Revolving Credit Loans hereunder, may
exceed the Swing Line Lender's Commitment then in effect); provided, however,
-------- -------
that on the date of the making of any Swing Line Loan, the sum of the aggregate
principal amount of all outstanding Revolving Credit Loans and Swing Line Loans
shall not exceed the total Commitments (less the Commitment of any non-funding
Lender referred to in Section 2.9(b)). During the Commitment Period applicable
to each Borrower, such Borrower may use the Swing Line Commitment by borrowing,
repaying and reborrowing, all in accordance with the terms and conditions
hereof. Each Swing Line Loan shall bear interest at a rate per annum equal to
the Federal Funds Rate plus the Applicable Margin.
2.14 Procedure for Swing Line Borrowing. Whenever a Borrower desires that
----------------------------------
the Swing Line Lender make Swing Line Loans under Section 2.13, the Borrower
shall give the Swing Line Lender irrevocable telephonic notice confirmed
promptly in writing (which telephonic notice must be received by the Swing Line
Lender not later than 3:00 P.M., New York City time, on the proposed Borrowing
Date), specifying the amount of each requested Swing Line Loan. Each borrowing
under the Swing Line Commitment shall be in an amount equal to $100,000 or an
integral multiple of $100,000 in excess thereof. Not later than 5:00 P.M., New
York City time, on the Borrowing Date specified in a notice by a Borrower in
respect of Swing Line Loans, the Swing Line Lender shall make available to the
Administrative Agent for the account of such Borrower at the office of the
Administrative Agent specified in Section 9.2 an amount in immediately available
funds equal to the amount of the Swing Line Loan to be made by the Swing Line
Lender. The proceeds of such Swing Line Loan will then be made available to such
Borrower on such Borrowing Date by the Administrative Agent transferring by wire
to the custodian of and for the account of such Borrower the aggregate of the
amounts made
available to the Administrative Agent by the Swing Line Lender in immediately
available funds.
2.15 Refunding of Swing Line Loans. (a) If the Swingline Loan has not
-----------------------------
been repaid, the Swing Line Lender, at any time in its sole and absolute
discretion may, and, if any Swingline Loan has not bee repaid, on the seventh
day (or if such day is not a Business Day, the next Business Day) after the
Borrowing Date with respect to any Swing Line Loans to a Borrower, shall, on
behalf of such Borrower (and each Borrower hereby irrevocably directs the Swing
Line Lender to so act on its behalf and with respect to each Borrower), upon
notice given by the Swing Line Lender no later than 10:00 A.M., New York City
time, on the relevant refunding date, request each Lender to make, and each
Lender hereby agrees to make, a Revolving Credit Loan to such Borrower, at the
rate applicable to the Swing Line Loans of such Borrower, in an amount equal to
such Lender's Commitment Percentage of the amount of such Swing Line Loans of
such Borrower (the "Refunded Swing Line Loans") outstanding on the date of such
-------------------------
notice, to repay the Swing Line Lender. Each Lender shall make the amount of
such Revolving Credit Loan available to the Administrative Agent at its office
set forth in Section 9.2 in immediately available funds, no later than 1:00
P.M., New York City time, on the date of such notice. The proceeds of such
Revolving Credit Loans shall be distributed by the Administrative Agent to the
Swing Line Lender and immediately applied by the Swing Line Lender to repay the
Refunded Swing Line Loans. Effective on the day such Revolving Credit Loans are
made, the portion of the Swing Line Loans so paid shall no longer be outstanding
as Swing Line Loans.
(b) The making of any Swing Line Loan hereunder at the request of a
Borrower shall be subject to the satisfaction of the applicable conditions
precedent thereto set forth in Section 4 (unless otherwise waived in accordance
with Section 9.1).
(c) If prior to the making of a Revolving Credit Loan to a Borrower
pursuant to Section 2.15(a) one of the events described in paragraph (e) of
Section 7 shall have occurred with respect to such Borrower, each Lender
severally, unconditionally and irrevocably agrees that it shall purchase a
participating interest in the applicable Swing Line Loans ("Unrefunded Swing
----------------
Line Loans") in an amount equal to the amount of Revolving Credit Loans which
----------
would otherwise have been made by such Lender pursuant to Section 2.15(a). Each
Lender will immediately transfer to the Administrative Agent, in immediately
available funds, the amount of its participation (the "Swing Line Participation
------------------------
Amount"), and the proceeds of such participation shall be distributed by the
------
Administrative Agent to the Swing Line Lender in such amount as will reduce the
amount of the participating interest retained by the Swing Line Lender in its
Swing Line Loans to the amount of the Revolving Credit Loans which were to have
been made by it pursuant to Section 2.15(a).
(d) Whenever, at any time after the Swing Line Lender has received
from any Lender such Lender's Swing Line Participation Amount, the Swing Line
Lender receives any payment on account of the Swing Line Loans, the Swing Line
Lender will distribute to such Lender its Swing Line Participation Amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded and, in the case of principal and interest payments, to reflect such
Xxxxxx's pro rata portion of such payment if such payment is not sufficient to
--------
pay the principal of an interest on all Swing Line Loans then due); provided,
--------
however, that in the event that such
-------
payment received by the Swing Line Lender is required to be returned, such
Lender will return to the Swing Line Lender any portion thereof previously
distributed to it by the Swing Line Lender.
(e) Each Lender's obligation to make the Loans referred to in Section
2.15(a) and to purchase participating interests pursuant to Section 2.15(c)
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the Swing
Line Lender or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of a Default or an Event of Default or the failure to satisfy any
of the other conditions specified in Section 4; (iii) any adverse change in the
condition (financial or otherwise) of any Borrower; (iv) any breach of this
Agreement or any other Loan Document by any Borrower or any Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
2.16 Designation of Additional Borrowers; Amendments to Schedule I. (a)
-------------------------------------------------------------
Other series of each Fund and other investment companies registered under the
1940 Act, in either case (a) which have at least $2,000,000 in Total Assets and
(b) for which UST or a Subsidiary of UST acts as the investment manager, may,
with the prior written consent of the Administrative Agent and each Lender,
become parties to this Agreement in addition to those Borrowers listed on
Schedule I, and be deemed Borrowers for all purposes of this Agreement by
----------
executing an instrument substantially in the form of Exhibit 2.16(a) hereto
---------------
(with such changes therein as may be approved by the Administrative Agent and
the Lenders), which instrument shall (x) have attached to it a copy of this
Agreement (as the same may have been amended) with a revised Schedule I
----------
reflecting the participation of such additional series or investment company and
any prior revisions to Schedule I effected in accordance with the terms hereof
-----------
and (y) be accompanied by the documents and instruments required to be delivered
by the Borrowers pursuant to Section 4.1, including, without limitation, an
opinion of counsel for the Funds substantially in the form of Exhibit 4.1(h)
hereto.
(b) No series of any Fund or investment company shall be admitted as
a party to this Agreement as a Borrower unless at the time of such admission and
after giving effect thereto: (i) the representations and warranties set forth in
Section 3 shall be true and correct with respect to such Borrower; (ii) such
Borrower shall be in compliance in all material respects with all of the terms
and provisions set forth herein on its part to be observed or performed at the
time of the admission and after giving effect thereto; and (iii) no Default or
Event of Default with respect to such Borrower shall have occurred and be
continuing.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, each Fund on behalf of itself and each Borrower
hereby represents and warrants to the Administrative Agent and each Lender that
(it being agreed that each Fund represents and warrants only to matters with
respect to itself and each Borrower that is a series of such Fund, and each
Borrower represents and warrants only to matters with respect to itself):
3.1 Financial Condition. For each Borrower, the statement of assets
-------------------
and liabilities as of such Borrower's most recently ended fiscal year for which
annual reports have been prepared and the related statements of operations and
of changes in net assets for the fiscal year ended on such date, copies of which
financial statements, certified by the independent public accountants for each
Fund acting on behalf of each Borrower, have heretofore been delivered to each
Lender, fairly present, in all material respects, the financial position of such
Borrower as of such date and the results of its operations for such period, in
conformity with GAAP (as consistently applied).
3.2 No Change. For each Borrower, since the date of the statement of
---------
assets and liabilities for the most recently ended fiscal year for which annual
reports have been prepared for such Borrower, there has been no development or
event which has had or could reasonably be expected to have a Material Adverse
Effect with respect to such Borrower.
3.3 Existence; Compliance with Law. Each Fund (a) is duly organized,
------------------------------
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the power and authority and the legal right to own its
property and to conduct the business in which it is currently engaged, (c) is
duly qualified as a foreign corporation or business trust and is in good
standing under the laws of each jurisdiction where its ownership of property or
the conduct of its business requires such qualification and (d) is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect. The shares of each Fund have been validly authorized.
3.4 Power; Authorization; Enforceable Obligations. Each Fund acting on
---------------------------------------------
behalf of one or more Borrowers, has the power and authority and the legal
right, to execute, deliver and perform the Loan Documents to which it is a party
and to borrow hereunder and has taken all necessary action to authorize the
borrowings on the terms and conditions of this Agreement and any Notes and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party including, but not limited to, receiving the approval of the
majority of non-interested members of the board of trustees or board of
directors of such Fund as to entering into the transactions contemplated hereby.
No consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents to which the Funds
and any Borrower is a party. This Agreement has been, and each other Loan
Document to which it is a party will be, duly executed and delivered by each
Fund on behalf of its Borrowers. This Agreement constitutes, and each other Loan
Document to which it is a party when executed and delivered will constitute, a
legal, valid and binding obligation of the Funds and each Borrower enforceable
against the Funds and each Borrower severally in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of the Loan
------------
Documents to which each of the Funds and the Borrowers is a party, the
borrowings hereunder and the use of the proceeds thereof will not violate any
material Requirement of Law (including, without
limitation, the 1940 Act) or Contractual Obligation of any Fund or any Borrower
and will not result in, or require, the creation or imposition of any Lien on
any of their respective properties or revenues pursuant to any such Requirement
of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or proceeding
----------------------
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of any Fund or any Borrower, threatened by or against any Fund or any
Borrower or against any of their respective properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions contemplated
hereby or thereby, or (b) which could reasonably be expected to have a Material
Adverse Effect.
3.7 No Default. Neither any Fund nor any Borrower is in default under
----------
or with respect to any of its Contractual Obligations in any respect which could
reasonably be expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each Fund and each Borrower has good
----------------------------
title to all its property, and none of such property is subject to any Lien
except as permitted by Section 6.3.
3.9 No Burdensome Restrictions. No Requirement of Law or Contractual
--------------------------
Obligation of any Fund or any Borrower could reasonably be expected to have a
Material Adverse Effect.
3.10 Taxes. (a) Each Fund and each Borrower has filed all tax returns
-----
which, to the knowledge of such Fund and such Borrower, are required to be filed
and has paid all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental Authority
(other than any the amount or validity of which are currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of such Fund or such
Borrower); no tax Lien has been filed, and, to the knowledge of each Fund and
each Borrower, no claim is being asserted, with respect to any such tax, fee or
other charge.
(b) Each Borrower is a "regulated investment company" as defined in
the Code.
3.11 Federal Regulations. No filing or other action is required under
-------------------
the provisions of Regulations T, U or X in connection with the execution and
delivery of the Agreement and the making of the Loans hereunder. If requested by
any Lender or the Administrative Agent from time to time, each Fund and each
Borrower will furnish to the Administrative Agent and each Lender a statement to
the foregoing effect in conformity with the requirements of FR Form U-1 and FR
Form G-3, as appropriate, referred to in said Regulation U.
3.12 ERISA. Neither any Fund, any Borrower nor any Commonly Controlled
-----
Entity has currently or has had at any time any liability or obligation under
ERISA or the Code with respect to any Plan.
3.13 Certain Regulations. Neither any Fund nor any Borrower is subject
-------------------
to regulation
under any Federal or State statute or regulation (other than Regulation X of the
Board of Governors of the Federal Reserve System and the 1940 Act) which limits
its ability to incur Indebtedness.
3.14 Subsidiaries. Each Fund has no Subsidiaries, and no equity
------------
investment or interest in any other Person (other than portfolio securities
which have been acquired in the ordinary course of business).
3.15 Registration of the Funds. Each Borrower is a series or portfolio
-------------------------
of a Fund and all Funds are registered as open-end, management investment
companies under the 1940 Act.
3.16 Offering in Compliance with Securities Laws. Each Fund and each
-------------------------------------------
Borrower has issued all of its securities pursuant to an effective registration
statement on Form N-1A or otherwise in accordance with all Federal and State
securities laws applicable thereto.
3.17 Investment Policies. Each Borrower is in compliance in all material
-------------------
respects with all of its fundamental Investment Policies.
3.18 Permission to Borrow. Each Borrower is permitted to borrow
--------------------
hereunder pursuant to the limits and restrictions set forth in its statement of
Additional Information.
3.19 Accuracy of Information. All financial information, information
-----------------------
regarding each Borrower's investment policies and information contained in
exhibits attached hereto heretofore or contemporaneously furnished by or on
behalf of each Fund and each Borrower in writing to the Administrative Agent or
any Lender for purposes of or in connection with this Agreement or any
transaction contemplated hereby (in each case, as amended, superseded,
supplemented or otherwise modified) is, and all other such factual information
with respect to a Borrower or a Fund hereafter furnished in writing by or on
behalf of each Fund and each Borrower to the Administrative Agent or any Lender
(in each case, as amended, superseded, supplemented or otherwise modified) will
be, true and accurate in every material respect on the date as of which such
information is dated or certified, and to the extent such information was
furnished to the Administrative Agent or such Lender heretofore or
contemporaneously, as of the date of execution and delivery of this Agreement by
the Administrative Agent or such Lender, and such information is not, or shall
not be, as the case may be, incomplete by omitting to state any material fact
necessary to make such information not misleading.
3.20 Affiliated Persons. To the best knowledge of each Fund and each
------------------
Borrower, such Fund and such Borrower, together with their respective Affiliates
is not an "Affiliated Person" (as defined in the 1940 Act) of the Administrative
Agent or any Lender.
3.21 Year 2000. Each Fund has used commercially reasonable efforts to
---------
obtain assurances deemed reasonable by such Fund from its investment adviser,
administrator, transfer agent, distributor and custodian (together, the "Service
-------
Providers") that the services provided by such Fund will not be materially
---------
disrupted due to the inability of the Service Providers' computer systems to
process properly dates on and after January 1, 2000 and distinguish between the
year 2000 and the year 1900 ("Year 2000 Problem"). Each Fund has been advised
-----------------
by the Service
Providers that they anticipate that the transition to the 21st century will not
result in a Material Adverse Effect. The disclosures contained herein regarding
Year 2000 readiness are designated as Year 2000 readiness disclosures related to
the Year 2000 Information & Readiness Disclosure Act.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Closing. The effectiveness of this Agreement is
---------------------
subject to the satisfaction, prior to or on the Closing Date, of the following
conditions precedent, which conditions precedent apply to and shall be satisfied
by the Borrowers severally:
(a) Executed Agreement. The Administrative Agent shall have received
------------------
this Agreement, executed and delivered by a duly authorized officer of each
Fund on behalf of such Fund and each Borrower, with a counterpart for each
Lender.
(b) Notes. The Administrative Agent shall have received Notes for
-----
each Lender which has requested Notes pursuant to Section 2.5(e), executed
and delivered by a duly authorized officer of each Fund on behalf of each
Borrower.
(c) Related Agreements. The Administrative Agent shall have received
------------------
true and correct copies, certified as to authenticity by each Fund, of the
most recent Prospectus for each Borrower, the Shareholder Services Agreement
for each Borrower, the Custody Agreement for each Borrower, the Distribution
Agreement for each Borrower, the Investment Management Agreement of each
Fund with respect to each Borrower, the current registration statement for
each Borrower, the most recent annual and semi-annual financial reports for
each Borrower and such other documents or instruments as may be reasonably
requested by the Administrative Agent, including, without limitation, a copy
of any debt instrument, security agreement or other material contract to
which any Borrower may be a party.
(d) Proceedings of the Funds and the Borrowers. The Administrative
------------------------------------------
Agent shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative Agent,
of the board of trustees or directors, as the case may be, of each Fund
authorizing (i) the execution, delivery and performance of this Agreement
and the other Loan Documents to which each Fund and each Borrower is a party
and (ii) the borrowings contemplated hereunder, certified by the Secretary
or an Assistant Secretary of such Person as of the Closing Date, which
certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded and are in full force
and effect.
(e) Incumbency Certificate. The Administrative Agent shall have
----------------------
received, with a counterpart for each Lender, a Certificate of each Fund,
dated the Closing Date, as to the incumbency and signature of the officers
of such Fund executing any Loan Document executed by the Secretary or any
Assistant Secretary of such Fund, satisfactory
in form and substance to the Administrative Agent.
(f) Organizational Documents. The Administrative Agent shall have
------------------------
received, with a counterpart for each Lender, true and complete copies of
the charter or certificate, as the case may be, and by-laws of each Fund,
certified as of the Closing Date as complete and correct copies thereof by
the Secretary or an Assistant Secretary of each Fund.
(g) Regulations U; Forms U-1 and G-1. The Lenders shall be satisfied
--------------------------------
that the Loans and the use of proceeds thereof comply in all respects with
Regulation U. If required by Regulation , the Administrative Agent shall
have received a copy of either (i) FR Form U-1 or FR Form G3 (as
applicable), duly executed and delivered by each Fund on behalf of each
Borrower and completed for delivery to each Lender, in form acceptable to
the Administrative Agent, or (ii) a current list of "margin stock" (as
defined in Regulation U) from each Borrower, in form acceptable to the
Administrative Agent and in compliance with Section 221.3(c)(2) of
Regulation U.
(h) Legal Opinions. The Administrative Agent shall have received, with
--------------
a counterpart for each Lender, the executed legal opinion of counsel to the
Funds and each Borrower, substantially in the form of Exhibit 4.1(h)
--------------
hereto. Such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(i) Financial Information. The Administrative Agent shall have
---------------------
received, with a copy for each Lender, the most recent publicly available
financial information (which includes a list of portfolio securities) for
each Fund and each Borrower.
(j) Termination of other Credit Facilities. All other credit
--------------------------------------
facilities to which any Borrower is a party including, but not limited to,
the $50,000,000 bilateral facility heretofore entered into between Chase
and the Borrowers, shall have been terminated.
(k) Representations and Warranties. Each of the representations and
------------------------------
warranties made by a Fund acting on behalf of a requesting Borrower and by
the requesting Borrower in or pursuant to the Loan Documents shall be true
and correct in all material respects on and as of such date as if made on
and as of such date.
4.2 Conditions to Each Loan. The agreement of each Lender to make any
-----------------------
Loan requested by a particular Borrower to be made by it on any date (including,
without limitation, its initial Loan) is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties (other than Section 3.2) made by a Fund acting on behalf of a
requesting Borrower and by the requesting Borrower in or pursuant to the
Loan Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred
----------
with
respect to the requesting Borrower, or the Fund acting on behalf of a
requesting Borrower, and be continuing on such date or after giving effect
to the Loans requested to be made on such date.
(c) Maximum Borrowing Limitation. After giving effect to the proposed
----------------------------
Loans to be made, the Asset Coverage Ratio for all borrowings of such
Borrower shall not be less than 300% and the requesting Borrower shall not
have violated any Requirements of Law or exceeded the borrowing limits set
forth in its Prospectus.
(d) Regulation U; Forms U-1 and G-1. The Lenders shall be satisfied
-------------------------------
that the Loans and the use of proceeds thereof comply in all respects with
Regulation U. To the extent required by Regulation U, the Administrative
Agent shall have received a copy of either (i) FR Form U-1 or FR Form G3 (as
applicable), duly executed and delivered by each Fund on behalf of each
Borrower and completed for delivery to each Lender, in form acceptable to
the Administrative Agent, or (ii) a current list of "margin stock" (as
defined in Regulation U) from each Borrower, in form acceptable to the
Administrative Agent and in compliance with Section 221.3(c)(2) of
Regulation U.
(e) Additional Matters. All corporate and other proceedings, and all
------------------
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be reasonably satisfactory in form and substance to the Administrative
Agent, and the Administrative Agent shall have received such other documents
and legal opinions in respect of any aspect or consequence of the
transactions contemplated hereby or thereby as it shall reasonably request.
Each borrowing by a Borrower hereunder shall constitute a representation and
warranty by such Borrower as of the date thereof that the conditions contained
in this Section have been satisfied with respect to such Borrower.
SECTION 5. AFFIRMATIVE COVENANTS
Each Fund for itself and each Borrower for itself severally and not jointly
or jointly and severally hereby agrees that, so long as (i) the Commitments
remain in effect with respect to it or (in the case of any Fund) any Borrower
that is a series of such Fund or (ii) any amount is owing by it or (in the case
of any Fund) any Borrower that is a series of such Fund to any Lender or the
Administrative Agent hereunder or under any other Loan Document, it and (in the
case of any Fund) any Borrower that is a part of such Fund shall (it being
agreed that each Fund covenants only to matters with respect it itself and each
Borrower that is a part of such Fund, and each Borrower covenants only to
matters with respect to itself):
5.1 Financial Statements. Furnish to the Administrative Agent (with
--------------------
copies for each Lender):
(a) as soon as available and in any event within 75 days after the end
of each
fiscal year of such Borrower, a statement of assets and liabilities
of such Borrower as at the end of such fiscal year, a statement of
operations for such fiscal year, a statement of changes in net assets for
such fiscal year and the preceding fiscal year, a portfolio of investments
as at the end of such fiscal year and the per share and other data for such
fiscal year prepared in accordance with GAAP (as consistently applied) and
all regulatory requirements, and all presented in a manner acceptable to the
Securities and Exchange Commission or any successor or analogous
Governmental Authority and acceptable to Ernst & Young LLP or any other
independent certified public accountants of recognized standing;
(b) as soon as available and in any event within 60 days after the
close of the first six-month period of each fiscal year of such Borrower, a
statement of assets and liabilities as at the end of such six-month period,
a statement of operations for such six-month period, a statement of changes
in net assets for such six-month period and a portfolio of investments as at
the end of such six-month period, all prepared in accordance with regulatory
requirements and all certified (subject to normal year end adjustments) as
to fairness of presentation, GAAP (as consistently applied) and consistency
by a Responsible Officer; and
(c) as soon as available, but in any event not later than 10 days after
the end of each month of each fiscal year of each Borrower, the net asset
value sheet of such Borrower as at the end of such month, in the form and
detail similar to those customarily prepared by the Funds' management for
internal use and reasonably satisfactory to the Administrative Agent,
certified by a Responsible Officer as being fairly stated in all material
respects; provided, however, that if any Borrower has Loans outstanding,
-------- -------
such Borrower shall provide each Lender with (i) such net asset value sheet
described above in this Section and (ii) a certificate of a Responsible
Officer showing in reasonable detail the calculations supporting such
Borrower's compliance with Section 6.1, within two Business Days after the
end of each calendar week so long as any Loans to such Borrower remain
outstanding;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 Certificates; Other Information. Furnish to the Administrative Agent
--------------------------------
(with copies for each Lender):
(a) concurrently with the delivery of the financial statements referred
to in Section 5.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making
the examination necessary therefor no knowledge was obtained of any Default
or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred
to in
Sections 5.1(a), (b) and (c) and the quarterly report in Section
5.2(d), a certificate of a Responsible Officer stating that, to the best of
such Officer's knowledge, such Borrower during such period has observed or
performed all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to be
observed, performed or satisfied by it, and that no Default or Event of
Default has occurred and is continuing except as specified in such
certificate;
(c) within five days after the same are sent, copies of all financial
statements and reports which each Borrower sends to its investors, and
within five Business Days after the same are filed, copies of all financial
statements and reports which each Borrower may make to, or file with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority;
(d) as soon as available, but in any event not later than ten days
after the end of each quarter, a certificate of a Responsible Officer (i)
stating that the list of each Borrower's portfolio securities attached to
such certificate is true and correct and (ii) showing in reasonable detail
the calculations supporting such Borrower's compliance with Section 6.1; and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request, including, but not limited
to, copies of all changes to the Prospectus and registration statement.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
----------------------
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
such Borrower or such Fund, as the case may be.
5.4 Conduct of Business and Maintenance of Existence; Change of Custodian.
---------------------------------------------------------------------
Continue to engage in its investment business in accordance with its Investment
Policies, Prospectus and registration statement and preserve, renew and keep in
full force and effect its existence and take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, be reasonably expected to have a Material Adverse Effect;
maintain at all times its status as an investment company or a series of an
investment company registered under the 1940 Act; maintain at all times a
custodian which is a bank or trust company organized under the laws of the
United States or a political subdivision thereof having assets of at least
$10,000,000,000 and a long-term debt or deposit rating of at least A from S&P or
A2 from Moody's.
5.5 Maintenance of Property; Insurance. Keep all property useful and
----------------------------------
necessary in its business, if any, in good working order and condition; maintain
with financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks as are usually
insured against in the same general area by entities engaged in the same or
similar business or as may otherwise be required by the Securities and Exchange
Commission or any successor or analogous Governmental Authority (including,
without limitation, (a) fidelity bond coverage as shall be required by Rule 17g-
1 promulgated under the 1940 Act or any successor provision and (b) errors and
omissions insurance); and furnish to each Lender, upon written request, full
information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions. Keep proper
------------------------------------------------------
books of records and account in which full, true and correct in all material
respects entries in conformity with GAAP and all material Requirements of Law
shall be made of all dealings and transactions in relation to its business and
activities; and permit representatives of (i) the Administrative Agent, or its
representatives, upon its own discretion or at the reasonable request of any
Lender, and (ii) upon the occurrence and during the continuance of an Event of
Default, any Lender, or its representatives, to visit and inspect any of such
Xxxxxxxx's properties and examine and make abstracts from any of its books and
records during normal business hours and to discuss the business, operations,
properties and financial and other condition of such Borrower with officers and
employees of such Borrower and with its independent certified public
accountants; provided that, unless a Default or an Event of--------Default shall
have occurred and be continuing, the Administrative Agent shall provide the
Borrowers with five Business Days' prior notice of such visit and shall only
conduct such visit once a year.
5.7 Notices. Promptly give notice to the Administrative Agent and each
-------
Lender of:
(a) the occurrence of any Default or Event of Default with respect to
such Borrower;
(b) any (i) default or event of default under any Contractual
Obligation of such Borrower or such Fund or (ii) litigation, investigation
or proceeding which may exist at any time between any Fund and/or any
Borrower and any Governmental Authority, which in either case, if not cured
or if adversely determined, as the case may be, could reasonably be expected
to have a Material Adverse Effect;
(c) any litigation or proceeding affecting such Borrower in which the
amount reasonably determined to be at risk is $1,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought;
(d) change in such Borrower's Prospectus or registration statement
involving fundamental Investment Policies which could materially increase
the risks to the shareholders of the Borrower; and
(e) any development (other than widely reported general economic or
industry developments) or event which could reasonably be expected to have a
Material Adverse Effect on any such Borrower.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action such Fund or such Borrower proposes to take with respect
thereto.
5.8 Purpose of Loans. Use the proceeds of the Loans for temporary or
----------------
emergency purposes. Without limiting the foregoing, no Borrower will, directly
or indirectly, use any part of such proceeds for any purpose which would violate
any provision of its registration statement or any applicable statute,
regulation.
SECTION 6. NEGATIVE COVENANTS
Each Fund for itself and each Borrower for itself hereby agrees that,
so long as (i) the Commitments remain in effect with respect to it or (in the
case of any Fund) any Borrower that is a part of such Fund or (ii) any amount is
owing by it or (in the case of any Fund) any Borrower that is a part of such
Fund to any Lender or the Administrative Agent hereunder or under any other Loan
Document, it and (in the case of any Fund) any Borrower that is a part of such
Fund shall not, without the prior written consent of the Required Lenders,
directly or indirectly:
6.1 Financial Condition Covenant. Permit the Asset Coverage Ratio of such
----------------------------
Borrower to be less than 300%, or allow borrowings and/or Indebtedness of such
Borrower to exceed the limits set forth in such Borrower's Prospectus or allow
borrowing and/or Indebtedness to exceed the requirements of the 1940 Act.
6.2 Limitation on Indebtedness. Create, incur, assume or suffer to exist
--------------------------
any Indebtedness of such Borrower, except Indebtedness of such Borrower incurred
(i) under this Agreement and the Notes, (ii) in the ordinary course of business
of such Borrower or (iii) in the form of reverse repurchase transactions, dollar
rolls or other transactions entered into primarily for investment purposes which
have the effect of borrowing and, in each case, which is not otherwise
prohibited by law is in the ordinary course of business, is not in contravention
of such Borrower's Prospectus and is reflected properly in the calculation of
the Asset Coverage Ratio.
6.3 Limitation on Liens. Create, incur, assume or suffer to exist any Lien
-------------------
upon any of the property, assets or revenues, whether now owned or hereafter
acquired of such Borrower, except for (i) Liens for taxes not yet due or which
are being contested in good faith by appropriate proceedings, provided that
--------
adequate reserves with respect thereto are maintained on the books of such
Borrower in conformity with GAAP, (ii) Liens arising in connection with claims
for advances made by or payments due to any custodian under the Custodian
Agreements set forth in Schedule IV hereto and (iii) any other Liens created,
-----------
incurred, assumed or suffered to exist in compliance with the registration
statement of such Borrower which are not otherwise prohibited by any Requirement
of Law, and for which the Administrative Agent has been given prior written
notice.
6.4 Limitation on Guarantee Obligations. Create, incur, assume or suffer
-----------------------------------
to exist any material Guarantee Obligation of such Borrower.
6.5 Limitation on Fundamental Changes. Enter into any merger,
---------------------------------
consolidation or amalgamation, or liquidate, wind up or dissolve such Borrower
or fund (or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of all of the property,
business or assets of such Borrower in a single transaction or in related
transactions, or make any material change in its present method of conducting
business; except that, so long as no Default or Event of Default shall have
occurred and be continuing, a Borrower will be permitted to (i) enter into any
merger, consolidation or amalgamation with one or more Borrowers or, with the
consent of the Administrative Agent (which consent shall not be unreasonably
withheld), one or more Affiliates or such Borrower if, in each case, UST or one
of its affiliates is the investment manager to the entity surviving such merger,
consolidation or amalgamation and such entity assumes the obligations of such
Borrower under the Loan Documents and complies with the provisions hereof or
(ii) liquidate, wind up or convey, sell, lease, assign, transfer or otherwise
dispose of all of the property, business or assets of such Borrower if it repays
all Loans made to it prior to liquidation or (iii) sell, transfer or otherwise
dispose of all or substantially all of its assets to one or more Borrowers or,
with the consent of the Administrative Agent (which consent shall not be
unreasonably withheld), one or more Affiliate of such Borrower if UST or one of
its affiliates is the investment manager to the entity surviving such merger,
consolidation or amalgamation and such entity assumes the obligations of such
Borrower under the Loan Documents and complies with the provisions hereof. Any
Borrower undertaking any action described in clause (ii) above shall comply with
the termination provisions described in Section 2.4 hereof.
6.6 Limitation on Distributions. At any time, make any distribution to
---------------------------
the shareholders of such Borrower, whether now or hereafter existing, either
directly or indirectly, whether in cash or property or in obligations of the
borrower if such distribution results in a Default or an Event of Default ,
except to the extent that such distributions are required to enable such
Borrower to continue to qualify as a "regulated investment company" under
Sections 851-855 of the Code or otherwise to minimize or eliminate federal or
state income or excise taxes payable by such Borrower and except as otherwise
required by any other Requirement of Law. During the occurrence and continuation
of an Event of Default specified in paragraphs (a) or (e) of Section 7 or an
Event of Default arising in connection with a Borrower's having failed to comply
with Section 6.1, make any distribution to the shareholders of such Borrower,
whether now or hereafter existing, either directly or indirectly, whether in
cash or property or in obligations of the Borrower, except to the extent that
such distributions are required to enable such Borrower to continue to qualify
as a "regulated investment company" under Sections 851-855 of the Code or
otherwise to minimize or eliminate federal or state income or excise taxes
payable by such Borrower and except as otherwise required by any other
Requirement of Law.
6.7 Limitation on Investments, Loans and Advances. Make any advance, loan,
---------------------------------------------
extension of credit or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of or any assets constituting a business
unit of or make any other investment in, any Person, except those not
inconsistent with such Borrower's Investment Policies.
6.8 Limitation on Transactions with Affiliates. Enter into any
------------------------------------------
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) not otherwise prohibited under this Agreement and not in
violation of the 1940 Act, (b) in the ordinary course of such Borrower's
business, and (c) upon fair and reasonable terms no less favorable to such
Borrower than it would obtain in a comparable arm's length transaction with a
Person which is not an Affiliate.
6.9 Limitation on Negative Pledge Clauses. Enter into with any Person any
-------------------------------------
agreement, other than this Agreement or the other Loan Documents, which
prohibits or limits the ability of such Borrower to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owed or hereafter acquired.
6.10 Limitation on Changes to Investment Policies. Except as may be
--------------------------------------------
required by law, make any amendment to the Prospectus or registration statement
of such Borrower relating to changes in the fundamental Investment Policies of
such Borrower which amendment requires approval of such Borrower's shareholders
without the consent of the Required Lenders, which consent shall not be
unreasonably withheld.
SECTION 7. EVENTS OF DEFAULT
Subject to the final paragraph of this Section 7, if any of the following
events shall occur and be continuing with respect to a Borrower or a Fund, on
behalf of such Borrower, as the case may be (each an "Event of Default"):
----------------
(a) A Borrower shall fail to pay any principal of any Loan when due in
accordance with the terms thereof or hereof, including without limitation
any failure to make a mandatory prepayment due pursuant to the provisions of
Section 2.6(b); or a Borrower shall fail to pay any interest on any Loan, or
any other amount payable hereunder, within three Business Days after any
such interest or other amount becomes due in accordance with the terms
thereof or hereof; or
(b) Any representation or warranty made or deemed made by a Borrower or
any Fund herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Loan
Document shall prove to have been incorrect in any material respect on or as
of the date made or deemed made; or
(c) A Borrower or a Fund shall default in the observance or performance
of any other covenant or agreement contained in this Agreement or any other
Loan Document (other than as provided in paragraphs (a) and (b) of this
Section), and such default shall continue unremedied for a period of 30 days
or, solely in the case of such default arising under Sections 5.4 or 6.5
hereof, 15 Business Days; or
(d) A Borrower or a Fund shall (i) default in any payment of principal
of or interest on any Indebtedness (other than the Loans) or in the payment
of any Guarantee Obligation, beyond the grace period (not to exceed 30
days), if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created, if the aggregate amount of
the Indebtedness and/or Guarantee Obligations in respect of which such
default or defaults shall have occurred is at least 5% of such Borrower's or
such Fund's net assets; or (ii) default in the observance or performance of
any other agreement or condition relating to any such Indebtedness or
Guarantee
Obligation or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to become due prior to
its stated maturity or such Guarantee Obligation to become payable; or
(e) (i) Any Fund shall commence any case, proceeding or other action
with respect to itself or any Borrower (A) under any then applicable law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or
its debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial
part of its assets, or a Borrower or a Fund shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against a
Borrower or a Fund any case, proceeding or other action of a nature referred
to in clause (i) above which (A) results in the entry of an order for relief
or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against a Borrower or a Fund any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) a Borrower or a Fund shall take any action in writing in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) a
Borrower or a Fund shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due; or
(f) Either a Borrower or any Commonly Controlled Entity of such
Borrower incurs any liability to any Plan which could reasonably be expected
to have a Material Adverse Effect; or
(g) One or more judgments or decrees shall be entered against a
Borrower or a Fund involving in the aggregate a liability (not fully covered
by insurance or otherwise paid or discharged) of 5% or more of such
Borrower's net assets, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or
(h) Unless consented to by the Lenders, UST or a Person directly
controlling, controlled by, or under common control with UST shall no longer
act as investment manager for the Funds; or
(i) A Fund or a Borrower's registration under the 1940 Act shall lapse
or be suspended (or proceedings for such purpose shall have been
instituted); or
(j) A Borrower shall fail to materially comply with its fundamental
Investment Policies;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (e) of this Section with respect to such
Borrower (or a Fund acting on behalf of one or more Borrowers), automatically
the Commitments available to such Borrower (or all of the Borrowers that are
portfolios of such Fund) shall immediately terminate and the Loans hereunder
made to any such Borrower (with accrued interest thereon) and all other amounts
owing under this Agreement by such Borrower shall immediately become due and
payable, and (B) if such event is any other Event of Default with respect to
such Borrower (or a Fund acting on behalf of one or more Borrowers), any or all
of the following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to such Borrower declare the
Commitments available to such Borrower (or all of the Borrowers issued under
such Fund if such Event of Default is a Fund Event of Default (as defined
below)) to be terminated forthwith, whereupon such Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to such Xxxxxxxx, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement by such
Borrower (or all of the Borrowers issued under such Fund if such Event of
Default is a Fund Event of Default) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly provided
above in this Section, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
Notwithstanding any other provision herein to the contrary, Defaults and
Events of Defaults shall have the following results:
(i) a Default or Event of Default with respect to one Borrower shall
not constitute a Default or Event of Default to any other
Borrower;
(ii) except as set forth in clause (iii) below, a Default or Event of
Default with respect to a Fund acting on behalf of one or more
Borrowers shall constitute a Default or Event of Default, as the
case may be, only to the Borrower implicated in, or affected by,
the act or omission causing such Default or Event of Default;
(iii) a Fund Default or a Fund Event of Default with respect to a Fund
acting on behalf of one or more Borrowers shall constitute a
Default or Event of Default, as the case may be, to all
Borrowers issued by such Fund; and
(iv) an Event of Default of the type described in paragraph (h) of
this Section 7 shall constitute an Event of Default to all
Borrowers.
"Fund Event of Default" shall mean an Event of Default with respect to a Fund as
---------------------
a whole and not with respect to any Borrower or a Fund acting on behalf of a
Borrower (A) of any of the
types described in paragraphs (d), (e), (g), or (i) of this Section 7, or (B)
arising from such Fund's failure to comply with the covenants set forth in
Sections 5.3, 5.4, 5.5 or 6.5. "Fund Default" shall mean any of the events
------------
giving rise to Fund Events of Default, whether or not any requirement for the
giving of notice, the lapse of time, or both, or any other condition, has been
satisfied. Notwithstanding anything herein to the contrary, a Default or Event
of Default with respect to one Borrower shall not constitute a Default or Event
of Default with respect to any other Borrower.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and
-----------
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of
--------------------
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence, willful misfeasance, bad faith or
misconduct of any agents or attorneys in-fact selected by it with reasonable
care.
8.3 Exculpatory Provisions. Neither the Administrative Agent nor any
----------------------
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (a) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Fund or any
Borrower or any officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of any Borrower or any
Fund to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Fund or any Borrower.
8.4 Reliance by Administrative Agent. The Administrative Agent shall
--------------------------------
be entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Funds or the
Borrowers), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall not be deemed to
-----------------
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or a
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that the Administrative Agent receives such a notice, the Administrative Agent
shall give notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until the
--------
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
------------------------------------------------------
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Funds or
Borrowers, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Borrowers. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Funds or the Borrowers which
may come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the Administrative
---------------
Agent in its capacity as such (to the extent not reimbursed by the Borrowers and
without limiting the obligation of the Borrowers to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with their Commitment Percentages immediately
prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
--------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's gross negligence or willful misconduct. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The Administrative
-----------------------------------------------
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with any Fund or any Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent may resign
------------------------------
as Administrative Agent upon 10 Business Days' notice to the Lenders and the
Borrowers; provided that no such resignation shall be effective until a
successor Administrative Agent has been appointed hereunder. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
the Lenders a successor agent for the Lenders (or, if the Required Lenders do
not appoint such successor agent within 30 days of the date of the resigning
Administrative Agents resignation notice, the resigning Administrative Agent
shall appoint from among the Lenders a successor agent) whereupon such successor
agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term "Administrative Agent" shall mean such successor
agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 8 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement nor any other Loan
----------------------
Document, nor any terms hereof or thereof, may be amended, supplemented or
modified except in accordance with the provisions of this Section. The Required
Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with any Fund on
behalf of a Borrower written amendments, supplements or modifications hereto and
to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of such Borrower hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
--------
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan or of any installment thereof, or reduce the stated
rate of any interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender affected
thereby, or (ii) amend, modify or waive any provision of this subsection or
reduce the percentage specified in the definition of Required Lenders, or
consent to the assignment or transfer by any Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, in each case
without the written consent of all the Lenders, or (iii) amend or modify the
first two sentences of Section 2.9(a), in each case without the written consent
of all the Lenders, or (iv) amend or modify the requirement contained in the
first sentence of Section 2.16(a) that consent of all the Lenders is required
to approve the addition of Borrowers to this Agreement, in each case without the
written consent of all the Lenders, or (v) amend or modify Section 2.6(b)
without the written consent of all the lenders, or (vi) amend or modify Section
6.1 without the written consent of all the Lenders, or (vii) amend, modify or
waive any provision of Section 8 without the written consent of the then
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall be effective (i) only for such Borrower(s) on whose behalf
any Fund executed such document(s) and (ii) in the specific instance and for the
specific purpose for which given.
9.2 Notices. All notices, requests and demands to or upon the respective
-------
parties hereto to be effective shall be in writing (which writing may be in the
form of a facsimile transmission), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered, or five
days after being deposited in the mail, postage prepaid, or, in the case of
facsimile notice, when received, addressed as follows in the case of any Fund,
any
Borrower and the Administrative Agent, and as set forth in Schedule II in the
case of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto:
The Funds and
the Borrowers: United States Trust Company of Connecticut
000 Xxxx Xxxxx Xxxx
Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Xxxxxxxxx: (000) 000-0000
The Administrative
Agent:
The Chase Manhattan Bank
Loan and Agency Services Group
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx
Xxx Xxxx, New York 10081
Attention: Ms. Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
and
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxxxxx-xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxxxxxx
Facsimile: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
--------
or the Lenders pursuant to Section 2.2, 2.4, 2.6, or 2.8 shall not be effective
until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of any party hereto, any right, remedy, power
or privilege hereunder or under the other Loan Documents shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
9.5 Payment of Expenses and Taxes; Indemnification. (a) Each Borrower
----------------------------------------------
agrees severally (ratably, in accordance with its Allocation) (a) to reimburse
the Administrative Agent for its reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent; provided, however, that
the fees and disbursements of counsel to the Administrative Agent incurred for
the preparation of this Agreement and the other Loan Documents shall be limited
as previously agreed to by the Borrowers and the Administrative Agent, (b) to
reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement with respect to such Borrower, the other Loan
Documents and any such other documents, including, without limitation, the fees
and disbursements of counsel to each Lender and of counsel to the Administrative
Agent, (c) to indemnify and hold each Lender and the Administrative Agent
harmless, from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or reasonably determined to
be payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents with
respect to such Borrower, and (d) to indemnify and hold each Lender and the
Administrative Agent (and their respective affiliates, directors, officers,
agents and employees (collectively with the Administrative Agent and the
Lenders, the "Indemnified Parties")) harmless from and against any and all other
-------------------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, out-of-pocket expenses or disbursements of any kind or nature whatsoever
arising from or in connection with the actual or proposed use of proceeds or the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
-----------------------
provided, that such Borrower shall have no obligation hereunder to the
--------
Administrative Agent or any Lender with respect to indemnified liabilities
arising from (i) the gross negligence or willful misconduct of the
Administrative Agent or any such Lender, (ii) disputes arising between or among
the Lenders or (iii) the failure of the Administrative Agent (and its
Affiliates) or of any Lender to comply with any Requirement of Law. The
agreements in this Section shall survive repayment of the Loans and all other
amounts payable hereunder.
(b) Notwithstanding any other provision in this Agreement to the
contrary, to the extent any obligation to reimburse or indemnify any Indemnified
Party arises pursuant to Section 9.5(a) is not attributable to any particular
Borrower, then such reimbursement or indemnification shall be made by each
Borrower (ratably, in accordance with its Allocation). To the extent any such
obligation to reimburse or indemnify any Indemnified Party is attributable to
one or more Borrowers, then such reimbursement or indemnification shall be made
ratably by each such Borrower any by no other Borrower.
9.6 Successors and Assigns; Participations and Assignments. (a) This
------------------------------------------------------
Agreement shall be binding upon and inure to the benefit of the Funds, the
Borrowers, the Lenders, the
Administrative Agent and their respective successors and assigns, except that
neither any Fund nor any Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender; provided that such consent of the Administrative Agent shall not be
--------
required if such assignment or transfer is made in furtherance of a merger,
consolidation or amalgamation which, by the express terms of Section 6.5, is
permitted to occur without the prior written consent of the Administrative
Agent.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable laws, at any time sell to one or more
Eligible Lenders ("Participants") participating interests in any Loan owing to
------------
such Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents. In the event of any such sale by
a Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Loan for all purposes
under this Agreement and the other Loan Documents, and the Borrowers and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Xxxxxx's rights and obligations under this Agreement and
the other Loan Documents. Any agreement pursuant to which any Lender may grant
such a participating interest shall provide that such Lender shall retain the
sole right and responsibility to enforce the obligations of the Borrowers
hereunder including the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation agreement
--------
may provide that (i) such Lender will not agree to any modification, amendment
or waiver of this Agreement described in clause (i) of the proviso in Section
9.1 without the consent of the Participant and (ii) the Participant may obtain
voting rights limited to changes in respect of the principal amount, interest
rates, fees and term of the Loans. Each Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall, to the maximum extent permitted by applicable laws, be
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, provided that, in purchasing such participating interest, such
--------
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 9.7(a) as fully as if it were a Lender
hereunder. Each Borrower also agrees that each Participant shall be entitled to
the benefits of Sections 2.10 and 2.11 with respect to its participation in the
Commitments and the Loans outstanding from time to time as if it was a Lender;
provided that, in the case of Section 2.11, such Participant shall have complied
--------
with the requirements of said Section and provided, further, that no Participant
--------
shall be entitled to receive any greater amount pursuant to any such Section
than the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any affiliate thereof that is an Eligible Lender
or, with the consent of the Funds (unless an Event of Default has occurred and
is continuing), to an additional Eligible Lender (an "Assignee") all or any part
--------
of its rights and obligations under this Agreement and the other Loan
Documents pursuant to an Assignment and Acceptance, substantially in the form of
Exhibit 9.6(c), executed by such Assignee, such assigning Lender and the
--------------
Administrative Agent and delivered to the Administrative Agent for its
acceptance and recording in the Register; provided, however, that assignments to
-------- -------
entities other than Lenders or Affiliates thereof must be in amounts of at least
$5,000,000. Upon such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment and Acceptance,
(x) the Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein, and (y) the assigning Lender
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto).
(d) The Administrative Agent, on behalf of the Borrowers, shall
maintain at the address of the Administrative Agent referred to in Section 9.2 a
copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
---------
the Commitment of, and principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive, in the absence
of manifest error, and the Borrowers, the Administrative Agent and the Lenders
may (and, in the case of any Loan or other obligation hereunder not evidenced by
a Note, shall) treat each Person whose name is recorded in the Register as the
owner of a Loan or other obligation hereunder as the owner thereof for all
purposes of this Agreement and the other Loan Documents, notwithstanding any
notice to the contrary. Any assignment of any Loan or other obligation
hereunder not evidenced by a Note shall be effective only upon appropriate
entries with respect thereto being made in the Register. The Register shall be
available for inspection by the Borrowers or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee, the Administrative Agent (and (i) in the case
such Assignee is not then a Lender or an Affiliate of a Lender to the extent and
(ii) no Event of Default has occurred and is continuing, by the Funds) together
with payment by the assigning Lender or Assignee to the Administrative Agent of
a registration and processing fee of $3,000 (for which no Borrower shall have an
obligation to reimburse), the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders, the Funds and the
Borrowers.
(f) Each Fund and each Borrower authorize each Lender to disclose to
any Participant or Assignee (each, a "Transferee") and any prospective
----------
Transferee any and all financial information in such Lender's possession
concerning any Fund or any Borrower and their Affiliates which has been
delivered to such Lender by or on behalf of the Funds or the Borrowers pursuant
to this Agreement or which has been delivered to such Lender by or on behalf of
the Funds or the Borrowers in connection with such Xxxxxx's credit evaluation of
the Borrowers and their Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
9.7 Adjustments; Set-off. (a) If any Lender (a "Benefited Lender")
-------------------- ----------------
shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7(e), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans, or interest thereon, such Benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders; provided,
--------
however, that if all or any portion of such excess payment or benefits is
-------
thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to any Borrower, any
such notice being expressly waived by each Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by a Borrower hereunder
(whether at the stated maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of such Borrower. Each Lender agrees promptly to notify such Borrower
and the Administrative Agent after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
--------
validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or more of the
------------
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Funds and the
Administrative Agent.
9.9 Severability. Any provision of this Agreement which is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan Documents represent
-----------
the agreement of each Fund, each Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
-------------
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. Each Fund and each Borrower
-----------------------------------
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the
State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such Fund
or such Borrower at its address set forth in Section 9.2 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential
damages.
9.13 Acknowledgments. Each Fund and each Borrower hereby acknowledges
---------------
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to such Fund or such Borrower arising
out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Xxxxxxx, on one hand, and
each Fund and each Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Funds, the Borrowers and the Lenders.
9.14 WAIVERS OF JURY TRIAL. EACH FUND, EACH BORROWER, THE ADMINISTRATIVE
---------------------
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.15 Non-Recourse. The Administrative Agent and the Lenders hereby
------------
agree for the benefit of UST and each and every shareholder, trustee, director
and officer of the Funds and the Borrowers and any successor, assignee, heir,
estate, executor, administrator or personal representative of any such
shareholder, trustee, director and officer (a "Non-Recourse Person") that: (a)
-------------------
no Non-Recourse person shall have any personal liability for any obligation of
any Fund or Borrower under this Agreement or any Loan Document or any other
instrument or document delivered pursuant hereto or thereto (except, in the case
of any shareholder, to the extent of its investment in the Borrower); (b) no
claim against any Non-Recourse Person may be made for any obligation of any Fund
or Borrower under this Agreement or any Loan Document or other instrument or
document delivered pursuant hereto or thereto, whether for payment of principal
of, or interest on, the Loans or for any fees, expense, or other amounts payable
by any Fund or Borrower hereunder or thereunder, or otherwise; and (c) the
obligations of each Borrower under this Agreement or any Loan Document or other
instrument or document delivered pursuant hereto or thereto are enforceable
solely against such Borrower and its properties and assets.
9.16 Waiver of Conflicts; Confidentiality. (a) Each Fund, on its own
------------------------------------
behalf or on behalf of the investment portfolios thereof which are Borrowers,
acknowledges that each of the Administrative Agent and each Lender and their
respective affiliates (collectively, the "Bank Parties") may be providing debt
------------
financing, equity capital or other services (including financial advisory
services) to other companies in respect of which such Funds and Borrowers may
have conflicting interests regarding the transactions described herein and
otherwise. Except as may otherwise be permitted herein, the Bank Parties will
not disclose Confidential Information obtained from such Funds and/or Borrowers
by virtue of the transactions contemplated by this Agreement or their other
relationships with such Funds and/or Borrowers in connection with the
performance by each of the Bank Parties of services for other companies, and
each of the Bank Parties will not disclose any such Confidential Information to
other companies. Such Funds and Borrowers also acknowledge that no Bank Party
has any obligation to use in connection with the transactions contemplated by
this Agreement, or to furnish to any Fund or Borrower, confidential information
obtained from other companies. The provisions of this Section 9.16(a) shall
survive the termination of this Agreement.
(b) For purposes of this Section, "Confidential Information" shall mean
------------------------
all
information received from any of the Funds, the Borrowers or UST relating to any
of them or their business, other than any such information that is available to
the Administrative Agent or any Lender on a nonconfidential basis other than as
a result of a breach of this Agreement. Each of the Administrative Agent and
each Xxxxxx agrees to maintain the confidentiality of, and not to use the
Confidential Information, except that Confidential Information may be disclosed
(i) to its and its Affiliates' directors, officers and employees including
without limitation accountants, legal counsel and other advisors for purposes
relating to the transactions contemplated by this Agreement or for conducting
legitimate audits (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Confidential
Information and will have agreed to keep such Confidential Information
confidential), (ii) to the extent requested by any legal or regulatory authority
having or claiming jurisdiction over such Person, (iii) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process,
(iv) to any other party to this Agreement for purposes relating to the
transactions contemplated hereby, (v) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (vi) subject to an agreement containing
provisions substantially the same as those of this subsection, to any Assignee
or Participant or any prospective Assignee or Participant which executes such
agreement, or (vii) with the written consent of the Borrowers. Any Person
required to maintain the confidentiality of Confidential Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has used its reasonable best efforts to maintain the
confidentiality of such Information. The provisions of this Section 9.16(b)
shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first written above.
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ Xxxx Xxxxx
----------------
Name: Xxxx Xxxxx
Title: Vice President
1999 EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
AND EXCELSIOR INSTITUTIONAL TRUST
CREDIT AGREEMENT SIGNATURE PAGE
EXCELSIOR FUNDS, INC., on behalf of
Money Fund
Government Money Fund
Treasury Money Fund
Short-Term Government Securities Fund
Intermediate-Term Managed Income Fund
Managed Income Fund
Blended Equity Fund
Energy and Natural Resources Fund
Value and Restructuring Fund
Small Cap Fund
International Fund
Emerging Markets Fund
Pacific/Asia Fund
Pan European Fund
Latin America Fund
Large Cap Growth Fund
Real Estate Fund
By: /s/ Xxxxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President
1999 EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
AND EXCELSIOR INSTITUTIONAL TRUST
CREDIT AGREEMENT SIGNATURE PAGE
EXCELSIOR TAX-EXEMPT FUNDS, INC., on behalf of
Tax-Exempt Money Fund
Short-Term Tax-Exempt Securities Fund
Intermediate-Term Tax-Exempt Fund
Long-Term Tax-Exempt Fund
New York Intermediate-Term Tax-Exempt Fund
California Tax-Exempt Income Fund
New York State Tax-Exempt Money Fund
By: /s/ Xxxxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President
EXCELSIOR INSTITUTIONAL TRUST, on behalf of
Equity Fund
Income Fund
Total Return Bond Fund
International Equity Fund
Optimum Growth Fund
Value Equity Fund
By: /s/ Xxxxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: President
1999 EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
AND EXCELSIOR INSTITUTIONAL TRUST
CREDIT AGREEMENT SIGNATURE PAGE
MELLON BANK, N.A.
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
1999 EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
AND EXCELSIOR INSTITUTIONAL TRUST
CREDIT AGREEMENT SIGNATURE PAGE
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, New York Branch
By: /s/ Xxxxxxx X. Xxx
------------------
Name: Xxxxxxx X. Xxx
Title: Director
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
1999 EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
AND EXCELSIOR INSTITUTIONAL TRUST
CREDIT AGREEMENT SIGNATURE PAGE
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
1999 EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
AND EXCELSIOR INSTITUTIONAL TRUST
CREDIT AGREEMENT SIGNATURE PAGE
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
1999 EXCELSIOR FUNDS, INC.
EXCELSIOR TAX-EXEMPT FUNDS, INC.
AND EXCELSIOR INSTITUTIONAL TRUST
CREDIT AGREEMENT SIGNATURE PAGE
DEN DANSKE BANK
By: /s/ Xxxxxx Xxxxxxxxxx
---------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
By: /s/ Xxxx X. X'Xxxxx
-------------------
Name: Xxxx X. X'Xxxxx
Title: Vice President
SCHEDULE I
----------
BORROWERS & ALLOCATIONS
-----------------------
BORROWER PRO RATA ALLOCATION
-------- -------------------
I. Excelsior Funds, Inc.
Money Fund 12.36%
Government Money Fund 10.09%
Treasury Money Fund 5.28%
Short-Term Government Securities Fund 0.76%
Intermediate-Term Managed Income Fund 1.77%
Managed Income Fund 2.65%
Blended Equity Fund 9.70%
Energy and Natural Resources 0.68%
Value and Restructuring Fund 8.73%
Small Cap Fund 0.60%
International Fund 2.84%
Emerging Markets Fund 0.10%
Pacific/Asia Fund 0.71%
Pan European Fund 1.59%
Latin America Fund 0.17%
Large Cap Growth Fund 3.50%
Real Estate Fund 0.44%
II. Excelsior Tax-Exempt Funds, Inc.
Tax-Exempt Money Fund 16.23%
Short-Term Tax-Exempt Securities Fund 0.48%
Intermediate-Term Tax-Exempt Fund 3.81%
Long-Term Tax-Exempt Fund 2.05%
New York Intermediate-Term Tax-Exempt Fund 1.86%
California Tax-Exempt Income Fund 0.76%
New York Tax-Exempt Money Fund 3.53%
III. Excelsior Institutional Trust
Equity Fund 2.30%
Income Fund 0.93%
Total Return Bond Fund 3.18%
International Equity Fund 1.19%
Optimum Growth Fund 1.16%
Value Equity Fund 0.55%
SCHEDULE II
-----------
COMMITMENTS, ADDRESSES, ETC.
----------------------------
Amount of
Name and Address of Lender Commitment
-------------------------- ------------
THE CHASE MANHATTAN BANK $45,000,000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, New York Branch $45,000,000
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
THE BANK OF NOVA SCOTIA $45,000,000
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
MELLON BANK, N.A. $45,000,000
One Mellon Bank Center, Room 4425
Pittsburgh, PA 15258
Attention: Xxxxx Xx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
DEN DANSKE BANK $45,000,000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
THE BANK OF NEW YORK $25,000,000
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
SCHEDULE III
------------
INVESTMENT MANAGEMENT AGREEMENTS
--------------------------------
SCHEDULE IV
-----------
CUSTODIAN AGREEMENTS
--------------------
SCHEDULE V
----------
DISTRIBUTION AGREEMENTS
-----------------------
SCHEDULE VI
-----------
SHAREHOLDER SERVICES AGREEMENTS
-------------------------------
EXHIBIT 2.5(e)
--------------
NON-NEGOTIABLE
FORM OF NOTE
$___________________ New York, New York
________, ________,
FOR VALUE RECEIVED, the undersigned Fund, on behalf of the Series designated
below (the "Borrower"), hereby promises to pay to the order of
--------
__________________________, at the office of The Chase Manhattan Bank, as
administrative agent for the Lenders (the "Lenders") under the Credit Agreement,
-------
as hereinafter defined (in such capacity, the "Administrative Agent"), located
--------------------
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, xx xxxxxx xxxxx xx xxx Xxxxxx
Xxxxxx of America and in immediately available funds, on the Maturity Date the
principal amount of (a) __________________________DOLLARS
($______________________), or, if less (b) the aggregate unpaid principal amount
of all Loans made by the Lenders to the Borrower pursuant to subsection 2.1 of
the Credit Agreement, as hereinafter defined.
The Fund, on behalf of the Borrower, further agrees to pay interest in like
money at such office on the unpaid principal amount hereof from time to time
outstanding from the Closing Date at the applicable rates per annum set forth in
subsection 2.7 of the Credit Agreement referred to below until any such amount
shall become due and payable (whether at the stated maturity, by acceleration or
otherwise), and thereafter on such overdue amount at the rate per annum set
forth in subsection 2.7(c) of the Credit Agreement until paid in full (both
before and after judgment). Interest shall be payable in arrears on each
applicable Interest Payment Date, commencing on the first such date to occur
after the date hereof and terminating upon payment (including prepayment) in
full of the unpaid principal amount hereof; provided that interest accruing on
--------
any overdue amount shall be payable on demand.
Anything in this Note to the contrary notwithstanding, the Borrower shall
be liable hereunder only for Loans borrowed by it under the Credit Agreement and
shall not be liable for the borrowings of any other Borrower under the Credit
Agreement. The sole source of repayment of the principal of and interest on
each Loan hereunder and the other obligations with respect thereto made with
respect to the Borrower shall be the revenues and assets of such Borrower, and
not the revenue and assets of the Fund (as defined below) of which such Borrower
is a series.
As set forth in Sections 2.5(f) and 9.15 of the Credit Agreement, no Non-
Recourse person defined therein shall have any personal liability under or by
reason of this Note, the Credit Agreement or the Loan Documents, and all
obligations of the Borrower hereunder and thereunder are enforceable solely
against the Borrower and the Borrower's assets and properties.
The holder of this Note is authorized to endorse on the schedule annexed
hereto and made a part hereof the date and amount of each Loan made to the
Borrower pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof. Each
such endorsement shall constitute prima facie evidence of the accuracy of the
----- -----
information endorsed. The failure to make any such endorsement shall not affect
the obligations of the Borrower in respect of such Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement, dated
as of December 27, 1999 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among the each of the open-end registered
----------------
investment companies a party thereto (each, a "Fund"), on behalf of one or more
series or portfolios of such Fund, the Lenders and the Administrative Agent, (b)
is subject to the provisions of the Credit Agreement and (c) is subject to
optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement.
Upon the occurrence of one or more Events of Default, all amounts then
remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK.
[NAME OF FUND] on behalf
of [NAME OF XXXXXXXX]
By:___________________________
Name:
Title:
Schedule A to Note
------------------
LOANS AND REPAYMENTS OF LOANS
============================================================================
AMOUNT OF UNPAID
PRINCIPAL PRINCIPAL
AMOUNT OF OF LOANS BALANCE OF NOTATION
DATE LOANS REPAID LOANS MADE BY
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
============================================================================
EXHIBIT 2.16(a)
---------------
FORM FOR DESIGNATION OF NEW BORROWERS
_________ __, ____
The Chase Manhattan Bank, as Administrative Agent
[List Lenders]
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of December 27,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") by and among each registered open-end management investment
-----------------
company party thereto (each a "Fund") on behalf of the series or portfolios
----
thereof, which series and portfolios are listed on Schedule I (each such series
----------
or portfolio, a "Borrower" and, collectively, the "Borrowers"), (ii) the several
-------- ---------
banks and other financial institutions from time to time parties to this
Agreement (the "Lenders") and (iii) THE CHASE MANHATTAN BANK, as Administrative
-------
Agent. Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Credit Agreement.
[NAME OF FUND](the "Fund") on behalf of [NAME OF NEW BORROWER] (the "Series")
------
hereby requests pursuant to Section 2.16 of the Credit Agreement that the Series
be admitted as an additional Borrower under the Credit Agreement. Furthermore,
the Fund on behalf of the New Borrower requests that Schedule I to the Credit
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Agreement be replaced with the form of Schedule I attached hereto.
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The Fund, on behalf of the New Borrower, hereby represents and warrants to
the Administrative Agent and each Lender that as of the date hereof and after
giving effect to the admission of the New Borrower as an additional Borrower
under the Credit Agreement: (i) the representations and warranties set forth in
Section 3 of the Credit Agreement are true and correct with respect to the New
Borrower; (ii) the New Borrower is in compliance in all material respects with
all the terms and provisions set forth in the Credit Agreement on its part to be
observed or performed as of the date hereof and after giving effect to the
admission; (iii) no Default or Event of Default with respect to the New
Borrower, nor any event which with the giving of notice or the expiration of any
applicable grace period or both would constitute such a Default or Event of
Default with respect to the New Borrower has occurred and is continuing.
The New Borrower agrees to be bound by the terms and conditions of the Credit
Agreement in all respects as a Borrower thereunder and hereby assumes all of the
obligations of a Borrower thereunder.
The New Borrower hereby gives the Administrative Agent and each Lender notice
that a copy of the relevant Trust's Agreement and Declaration of Trust
(including any amendments
thereto) is on file with the Secretary of State of the Commonwealth of
Massachusetts. The Administrative Agent and each Lender hereby acknowledge that
this designation of a New Borrower, the Credit Agreement and the Loan Documents,
and any other document related hereto or thereto, are each executed by the
trustees of the relevant Trust as trustees, and not individually, and that the
obligations of or arising out of this designation, the Credit Agreement and the
Loan Documents, and any other document related hereto or thereto, are not
binding upon any of the trustees or officers or shareholders individually, but
are binding only upon the assets and property of the relevant Borrower
(including the New Borrower).
Please indicate your assent to the admission of each Series as an additional
Borrower under the Credit Agreement and the replacement of Schedule I to the
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Credit Agreement by signing below where indicated.
[FUND on behalf of New
Borrower]
By:____________________________________
Name:
Title:
AGREED AND ACCEPTED:
THE CHASE MANHATTAN BANK
as Administrative Agent and as a Lender
By:__________________________________
Name:
Title:
[Signature block for each Lender follows]
EXHIBIT 9.6 (c)
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FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of December 27, 1999
(as amended, supplemented or otherwise modified from time to time, the "Credit
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Agreement"), by and among each registered open-end management investment company
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parties thereto (each a "Fund" and collectively the "Funds") on behalf of the
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series or portfolios of such Fund, which series and portfolios are listed on
Schedule I thereto (each such series or portfolio, a "Borrower" and,
---------- --------
collectively, the "Borrowers"), (ii) the several banks and other financial
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institutions from time to time parties to this Agreement (the "Lenders") and
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(iii) THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders hereunder (in such capacity, the
"Administrative Agent"). Unless otherwise defined herein, terms defined in the
---------------------
Credit Agreement and used herein shall have the meanings ascribed to them in the
Credit Agreement.
_________ (the "Assignee") and __________ (the "Assignor") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee without
recourse to the Assignor, and the Assignee hereby irrevocably purchases and
assumes from the Assignor without recourse to the Assignor, as of the Effective
Date (as defined below) the interest described in Schedule 1 hereto (the
"Assigned Interest") in and to the Assignor's rights and obligations under the
Credit Agreement.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to or in any connection with the Credit Agreement or
with respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower, or any other obligor or the
performance or observance by any Borrower, or any other obligor of any of their
respective obligations under the Credit Agreement or any other Loan Document or
any other instrument or document furnished pursuant hereto or thereto; and (c)
attaches any Notes held by it evidencing the Assigned Interest and (i) requests
that the Administrative Agent, upon request by the Assignee, exchange the
attached Notes for a new Note or Notes payable to the Assignee and (ii) if the
Assignor has retained any interest in the Aggregate Commitment, requests that
the Administrative Agent exchange the attached Notes for a new Note or Notes
payable to the Assignor, in each case in amounts which reflect the assignment
being made hereby (and after giving effect to any other assignments which have
become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally authorized to
enter into this Assignment and Acceptance; (b) confirms that it has received a
copy of the Credit Agreement, together with copies of such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent
or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto; (d) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Credit Agreement, the other
Loan Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (e) agrees that it will
perform in accordance with its terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender including,
if it is organized under the laws of a jurisdiction outside the United States,
its obligation pursuant to subsection 2.11(b) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
________________(the "Effective Date"). Following the execution of this
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Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent pursuant to the
Credit Agreement, effective as of the Effective Date (which shall not, unless
otherwise agreed to by the Administrative Agent, be earlier than five Business
Days after the date of such acceptance and recording by the Administrative
Agent).
5. Upon such acceptance and recording, from and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to the Effective Date or accrue
subsequent to the Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the substantive laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT
DATED AS OF DECEMBER 27, 1999
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Principal Commitment Percentage
Amount Assigned Assigned/1/
$ ___________ _______________ %
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By:_______________________ By:_______________________
Name: Name:
Title: Title:
Accepted and Consented To:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:_______________________
Name:
Title:
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Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all Lenders.
