Exhibit (h)(10)
CREDIT AGREEMENT
dated as of
December 21, 1999
between
Xxxxxxxx Xxxxxxxxx Institutional Funds
and
BankBoston, N.A.
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.......................................................... 1
1.02 Accounting Terms and Determinations.................................. 5
ARTICLE II
THE CREDIT
SECTION 2.01 Commitments to Lend..................................................... 6
2.02 Notice of Borrowings; Funding of Loans.................................. 6
2.03 Note.................................................................... 6
2.04 Maturity of Loans....................................................... 6
2.05 Interest Rates.......................................................... 7
2.06 Fees.................................................................... 7
2.07 Mandatory Termination of Commitments.................................... 7
2.08 Optional Termination or Reduction of Commitments........................ 7
2.09 Optional and Mandatory Prepayments...................................... 8
2.10 General Provisions as to Payments....................................... 8
2.11 Computation of Interest and Fees........................................ 8
2.12 Recourse to Assets...................................................... 9
ARTICLE III
CONDITIONS
SECTION 3.01 Effectiveness.......................................................... 9
3.02 All Borrowings......................................................... 10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Existence and Power; Investment Company................................ 11
4.02 Authorization; No Contravention........................................ 12
4.03 Binding Effect......................................................... 12
4.04 Compliance with Margin Rules........................................... 12
4.05 Affiliated Persons..................................................... 12
4.06 Subsidiaries........................................................... 12
4.07 Financial Information.................................................. 12
4.08 Litigation............................................................. 12
4.09 ERISA.................................................................. 13
4.10 Taxes.................................................................. 13
4.11 Compliance............................................................. 13
4.12 Full Disclosure........................................................ 13
Page
----
ARTICLE V
COVENANTS
SECTION 5.01 Information............................................................ 14
5.02 Payment of Obligations................................................. 15
5.03 Maintenance of Insurance............................................... 15
5.04 Conduct of Business and Maintenance of Existence....................... 15
5.05 Compliance with Laws................................................... 15
5.06 Inspection of Property, Books and Records.............................. 15
5.07 Debt................................................................... 15
5.08 Negative Pledge........................................................ 16
5.09 Consolidations, Mergers and Sales of Assets............................ 16
5.10 Use of Proceeds........................................................ 17
5.11 Ratio of Debt to Net Assets............................................ 17
5.12 Compliance with Registration Statement................................. 17
5.13 Non-Affiliation with Bank.............................................. 17
5.14 Deposit Account........................................................ 17
5.15 Regulated Investment Company........................................... 17
5.16 No Subsidiary.......................................................... 17
5.17 ERISA.................................................................. 17
5.18 Distributions.......................................................... 17
ARTICLE VI
DEFAULTS
SECTION 6.01 Events of Default ..................................................... 18
ARTICLE VII
CHANGE IN CIRCUMSTANCES
SECTION 7.01 Increased Cost and Reduced Return...................................... 19
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Notices................................................................ 20
8.02 No Waivers............................................................. 21
8.03 Expenses; Documentary Taxes; Indemnification........................... 21
8.04 Set-Off................................................................ 21
8.05 Amendments and Waivers................................................. 21
8.06 Successors and Assigns................................................. 21
8.07 Governing Law; Submission to Jurisdiction.............................. 22
8.08 Counterparts; Integration.............................................. 22
8.09 Waiver Of Jury Trial................................................... 22
Page
----
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - 1 Form of Opinion of Ropes & Xxxx
Exhibit C-2 Form of Opinion of E. Xxxxx Xxxxx, General Counsel
Schedule 1 - Addresses for Notices
Schedule 4.11(c) - Agreements with Regulators and Borrowing Limitations
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of December 21, 1999, by and among XXXXXXXX
XXXXXXXXX INSTITUTIONAL FUNDS, a trust organized under the laws of Delaware, on
behalf of certain of its Series (as defined below) as set forth on EXHIBIT 1
attached hereto, and BANKBOSTON, N.A.(the "Bank").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. The following terms, as used
herein, have the following meanings:
"Additional Series" means any series or portfolio of a Trust
which is established after the date hereof.
"Additional Trust" means any Person which is an open-end
management investment company registered as such under the Investment Company
Act and for which the Investment Adviser acts as the investment adviser.
"Affiliate" has the meaning ascribed to the term "Affiliated
Person" in the Investment Company Act and the rules and regulations thereunder.
"Affiliated Person" has the meaning ascribed to that term in
the Investment Company Act and the rules and regulations thereunder.
"Bank" means BankBoston, its successors and assigns.
"BankBoston" means BankBoston, N.A., a national banking
association.
"Base Rate" means the higher of (a) the annual rate of
interest announced from time to time by BankBoston at its head office in Boston,
Massachusetts as its "base rate" and (b) one-half of one percent (1/2%) above
the Federal Funds Rate as in effect from time to time.
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Borrower" means, with respect to each Trust whose assets are
not divided into series or portfolios, that Trust, and with respect to each
Trust whose assets are divided into series or portfolios, such Trust on behalf
of a particular Series of such Trust. For example, if a Trust has two Series and
wishes to borrow on behalf of one of those Series, the term "Borrower" would
mean the Trust on behalf of the Series borrowing; if the Trust wishes to borrow
on behalf of both Series, the term "Borrower" would mean the Trust on behalf of
one Series and the Trust on behalf of the other Series, severally.
"Borrowing" means the aggregation of Loans of the Bank to be
made to a Borrower pursuant to Article II hereof on a single date.
-2-
"Borrowing Date" means the Business Day on which Loans are
advanced hereunder as specified in a Notice of Borrowing delivered pursuant to
Section 2.02(a) hereof.
"Business Day" means any day on which commercial banks are
open for the purpose of transacting business in Boston, Massachusetts.
"Commitment" means the agreement of the Bank, subject to the
terms and conditions of this Agreement, to make Loans to the Borrowers
hereunder.
"Commitment Amount" means, $30,000,000, as such amount may be
reduced from time to time pursuant to Section 2.08.
"Custodian" means the entity which, on the Effective Date (or,
with respect to each Additional Trust or Additional Series which becomes a Trust
or Series hereunder, on the date such Additional Trust or Additional Series
becomes a Trust or Series hereunder), acts as the Borrower's custodian for
purposes of Section 17(f) of the Investment Company Act.
"Debt" of any Person means at any date, without duplication,
(a) all obligations of such Person for borrowed money or extensions of credit,
(b) all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (c) all obligations of such Person to pay the
deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (d) all obligations of such Person
as lessee which are or should be capitalized in accordance with generally
accepted accounting principles, (e) all Debt of others secured by a Lien on any
asset of such Person, whether or not such Debt is assumed by such Person, (f)
all obligations of such Person under Guarantees, all obligations to reimburse
the issuer in respect of letters of credit or under performance or surety bonds,
or other similar obligations, (g) all obligations of such Person in respect of
judgments, (h) all obligations of such Person in respect of banker's acceptances
and under reverse repurchase agreements, and (i) all obligations of such Person
in respect of futures contracts, swaps and other obligations that are, or would
be but for the segregation of assets therefor, senior securities for purposes of
the Investment Company Act.
"Default" means any condition or event which with the giving
of notice or lapse of time or both would, unless cured or waived, become an
Event of Default.
"Distribution" means the declaration or payment of any
dividend on or in respect of any beneficial interest in a Borrower, other than
dividends payable solely in beneficial interests in such Borrower; the purchase,
redemption, or other retirement of any beneficial interest in a Borrower,
directly or indirectly; the return of capital by a Borrower to the holders of
its beneficial interests as such; or any other distribution on or in respect of
any beneficial interest in a Borrower.
"Effective Date" means the date this Agreement becomes
effective in accordance with Section 3.01.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" means with respect to each Borrower, the
Borrower and all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which, together
with such Borrower, are treated as a single employer under Section 414 of the
Internal Revenue Code.
"Event of Default" has the meaning set forth in Section 6.01.
-3-
"Federal Funds Rate" means for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by the Bank from three Federal funds brokers of recognized standing
selected by the Bank in its sole discretion.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (b) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part), PROVIDED that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended, or any successor statute.
"Investment Adviser" means Xxxxxxxx-Xxxxxxxxx Capital
Management.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Lending Office" means, initially, the office of the Bank at
000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; and thereafter such other
office of the Bank, if any, located in the United States that shall be making or
maintaining Loans.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, including any agreement preventing a Person from encumbering such asset.
"Loans" means the revolving credit loans made or to be made to
a Borrower by the Bank pursuant to Section 2.01.
"Loan Documents" means, collectively, this Agreement, the
Note, and any and all other documents and instruments required to be delivered
pursuant to this Agreement, in each case as amended and in effect from time to
time.
"Maturity Date" means, with respect to each Loan, the earlier
of the day which is fourteen (14) days after the date such Loan was made or the
Termination Date.
"Maximum Amount" means, with respect to a Borrower, the
maximum amount such Borrower is permitted to borrow under the lowest borrowing
limitation imposed by the following:
(a) applicable laws and regulations, including the Investment
Company Act,
(b) the provisions of Sections 5.07 and 5.11 hereof,
-4-
(c) the limitations on borrowings adopted by such Borrower in
its Prospectus, Statement of Additional Information or elsewhere, and
(d) any agreements with federal, state, local or foreign
governmental authorities or regulators,
in each case as in effect from time to time.
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the ERISA
Group during such five year period.
"Net Assets" means, at any date and with respect to any
Borrower, the Total Assets of such Borrower MINUS the Total Liabilities of such
Borrower excluding the aggregate amount of such Borrower's Debt.
"Note" means promissory note of the Borrowers, substantially
in the form of EXHIBIT A attached hereto.
"Notice of Borrowing" has the meaning set forth in Section
2.02(a).
"Obligations" means, with respect to each Borrower, all
indebtedness, obligations and liabilities of such Borrower to the Bank, existing
on the date of this Agreement or arising thereafter, direct or indirect,
absolute or contingent, matured or unmatured, liquidated or unliquidated,
secured or unsecured, arising by contract, operation of law or otherwise,
arising or incurred under this Agreement or any of the other Loan Documents or
in respect of any of the Loans to such Borrower or the Note or other instruments
at any time evidencing any thereof.
"Overnight Rate" means one-half of one percent (1/2%) above
the Federal Funds Rate as in effect from time to time.
"Person" means an individual, a corporation (or series
thereof), a partnership, an association, a trust (or series thereof) or any
other entity or organization, including a government or political subdivision or
an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards of Section 302 or Section 412 of the
Internal Revenue Code and either (a) is maintained, or contributed to, by any
member of the ERISA Group for employees of any member of the ERISA Group or (b)
has at any time within the preceding five years been maintained, or contributed
to, by any Person which was at such time a member of the ERISA Group for
employees of any Person which was at such time a member of the ERISA Group.
"Prospectus" means the prospectus required to be delivered by
a Borrower to offerees of its securities pursuant to the Securities Act of 1933,
as amended, and all supplements thereto.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
-5-
"Revolving Credit Period" means the period from and including
the Effective Date to but excluding the Termination Date.
"Series" means, collectively, with respect to each Trust whose
assets are divided into series or portfolios, those series of such Trust listed
on SCHEDULE 1 attached hereto, and with the prior written consent of the Bank
and from and after delivery of each of the documents, in form and substance
satisfactory to the Bank, required by Section 3.01(b) hereof, any Additional
Series of such Trust and, individually, each of such Series.
"Statement of Additional Information" means the Statement of
Additional Information (and all supplements thereto) which must be provided by a
Borrower to recipients of its Prospectus upon request pursuant to rules and
regulations adopted by the Securities and Exchange Commission.
"Subsidiary" of a Borrower means any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are at the time directly or indirectly owned by such Borrower.
"Termination Date" means December 19, 2000 or such earlier
date on which the Commitment to the Borrowers terminates or is terminated
pursuant to the terms hereof.
"Total Assets" means, at any date, all assets of a Borrower
which in accordance with generally accepted accounting principles would be
classified as assets upon a balance sheet of such Borrower prepared as of such
date, valued in accordance with the methods and procedures described in such
Borrower's Prospectus and Statement of Additional Information.
"Total Liabilities" means, at any date, all liabilities of a
Borrower which in accordance with generally accepted accounting principles would
be classified as liabilities upon a balance sheet of such Borrower prepared as
of such date, including, without duplication, the aggregate amount of such
Borrower's Debt.
"Trust(s)" means, collectively, the Trust listed on SCHEDULE 1
attached hereto and, with the prior written consent of the Bank and from and
after delivery of each of the documents, in form and substance satisfactory to
the Bank, required in Section 3.01(b) hereof, any Additional Trust, and,
individually, each of such Trusts.
"Trust Default" means any condition or event which with the
giving of notice or lapse of time or both would, unless cured or waived, become
an Trust Event of Default.
"Trust Event of Default" means any Event of Default specified
in clauses (g) or (h) of Section 6.01 hereof, any Event of Default specified in
clause (b) of Section 6.01 hereof as a result of the failure by a Trust to
comply with Section 5.04 hereof, and any Event of Default specified in clause
(d) of Section 6.01 hereof to the extent such Event of Default arises with
respect to the representations set forth in Section 4.01 hereof.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time in the United States of America, applied on a basis consistent (except
for changes concurred in by the applicable Borrower's independent public
accountants) with the most recent audited financial statements of that Borrower
delivered to the Bank hereunder.
-6-
ARTICLE II
THE CREDIT
SECTION 2.01. COMMITMENTS TO LEND. Subject to the terms and
conditions set forth in this Agreement, the Bank agrees to lend to each
Borrower, and each Borrower may borrow, repay and reborrow from time to time
during the Revolving Credit Period, upon notice by such Borrower to the Bank
given in accordance with Section 2.02(a) hereof, such sums as are requested by
such Borrower up to a maximum aggregate amount outstanding (after giving effect
to all amounts requested) at any one time equal to the Commitment Amount,
PROVIDED that (a) the aggregate principal amount of all Loans outstanding to any
Borrower (after giving effect to all amounts requested) shall not exceed at any
time the Maximum Amount for such Borrower at such time and (b) the aggregate
principal amount of all Loans outstanding to all Borrowers (after giving effect
to all amounts requested) shall not exceed at any time the Commitment Amount.
Each Borrowing under this Section shall be in an aggregate principal amount of
not less than $100,000 or a larger whole multiple of $100,000. Each Loan shall
mature and become due and payable as provided in Section 2.04.
SECTION 2.02. NOTICE OF BORROWINGS; FUNDING OF LOANS. (a) The
Borrower requesting a Loan shall give the Bank a notice substantially in the
form of EXHIBIT B attached hereto (a "Notice of Borrowing") of each Loan
requested hereunder not later than 2:00 p.m. (Boston time) (or telephonic notice
not later than 2:00 p.m. (Boston time) confirmed in writing substantially in the
form of EXHIBIT B attached hereto not later than 3:00 p.m. (Boston time)) on the
Business Day of each proposed Borrowing. Each Notice of Borrowing or oral
request shall constitute a representation and warranty by the Borrower named
therein that the conditions set forth in Section 3.02 (and, in the case of the
initial Loan to be made hereunder, Section 3.01) have been satisfied on the date
of such notice and will be satisfied on the Borrowing Date. Such Notice of
Borrowing or oral request shall not thereafter be revocable by the Borrower
named therein and shall obligate such Borrower to accept the Loan requested from
the Bank on the Borrowing Date.
(b) If the Bank makes a new Loan hereunder for the use of a
particular Borrower on a day on which that Borrower is to repay all or any part
of an outstanding Loan to it, the Bank shall apply the proceeds of its new Loan
to make such repayment and only an amount equal to the difference (if any)
between the amount being borrowed and the amount being repaid shall be made
available by the Bank or remitted by that Borrower to the Bank, as the case may
be.
SECTION 2.03. THE NOTE. (a) The Loans of the Bank to each
Borrower shall be evidenced by a single Note payable to the order of the Bank in
an amount equal to the Commitment Amount or, if less, the aggregate unpaid
principal amount of the Loans, plus interest thereon as provided below.
(b) The Bank shall record on the Note the date, type and
amount of each Loan made by it to each Borrower and the date and amount of each
payment of principal made by such Borrower with respect thereto; PROVIDED that
the failure of the Bank to make, or any error by the Bank in making, any such
recordation or endorsement shall not affect the obligations of any Borrower
hereunder or under the Note. The Bank is hereby irrevocably authorized by each
Borrower so to endorse its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
SECTION 2.04. MATURITY OF LOANS. Each Loan shall mature, and
the principal amount thereof shall be due and payable, on the Maturity Date for
such Loan, together with any and all accrued and unpaid interest thereon.
-7-
SECTION 2.05. INTEREST RATES. (a) Subject to Section 2.06(b)
hereof, each Loan shall bear interest on the outstanding principal amount
thereof, for the period commencing with the date such Loan is made up to but not
including the date such Loan is repaid in full, at a rate per annum equal to the
Overnight Rate as in effect from time to time. Interest on each Loan shall be
payable in full on the Maturity Date of such Loan.
(b) Any overdue principal of (whether at stated maturity, by
acceleration or otherwise) and (to the extent permitted by applicable law)
interest on the Loans and all other overdue amounts payable hereunder shall bear
interest, payable on demand, for each day from and including the date payment
thereof was due (whether at stated maturity, by acceleration or otherwise)
through and including the date of actual payment, at a rate per annum equal to
the sum of two percent (2%) above the Base Rate until such amount shall be paid
in full (after as well as before judgment). During the continuance a Default or
an Event of Default the principal of the Loans of the defaulting Borrower not
overdue shall, until such Default or Event of Default has been cured or remedied
or such Default or Event of Default has been waived by the Bank, bear interest
at a rate per annum equal to the greater of (i) two percent (2%) above the rate
of interest otherwise applicable to such Loans pursuant to Section 2.05(a)
hereof and (ii) the rate of interest applicable to overdue principal.
SECTION 2.06. FEES. (a) During the Revolving Credit Period,
the Borrowers shall pay to the Bank a commitment fee at the rate of 0.10% per
annum on the daily amount by which the Commitment Amount exceeded the aggregate
outstanding principal amount of the Loans.
(b) The commitment fee shall accrue from and including the
Effective Date to but excluding the Termination Date. Accrued commitment fees
payable hereunder shall be payable quarterly in arrears on the last day of each
March, June, September and December, commencing on the first such day after the
Effective Date, and on the Termination Date.
(d) The Borrowers shall pay the commitment fee pro rata based
on the relative asset size of each such Borrower as of the first day of each
calendar quarter or based on such other method as the Board of Directors or
Board of Trustees, as applicable, of the Trust(s) shall determine with prior
written notice to the Bank.
SECTION 2.07. MANDATORY TERMINATION OF COMMITMENTS. On the
Termination Date, the Commitment Amount permanently shall reduce to $0 and the
Bank's Commitment shall terminate. Each Borrower promises to pay on the
Termination Date, and there shall become absolutely due and payable on the
Termination Date, all of the Loans outstanding to that Borrower on such date,
together with any and all accrued and unpaid interest thereon.
SECTION 2.08. OPTIONAL TERMINATION OR REDUCTION OF
COMMITMENTS. (a) Each Borrower shall have the right at any time and from time to
time upon three (3) Business Days' prior written notice to the Bank to terminate
entirely the Commitment to such Borrower, whereupon the Commitment to such
Borrower shall be terminated. Promptly after receiving any notice of any
Borrower delivered pursuant to this clause (a), the Bank will revise SCHEDULE 1
attached hereto accordingly. Upon the effective date of any such termination,
the applicable Borrower shall pay to the Bank all of the Loans outstanding to
that Borrower on such date, together with any and all accrued and unpaid
interest thereon, as well as the full amount of any commitment fee then accrued
and allocated to such Borrower. No termination of the Commitment as to any
Borrower may be reinstated.
(b) The Borrowers shall have the right at any time and from
time to time upon three (3) Business Days' prior written notice to the Bank to
reduce by $1,000,000 or an
-8-
integral multiple thereof the unborrowed portion of the Commitment Amount
whereupon the Commitment Amount shall be reduced. Upon the effective date of any
such reduction, the Borrowers shall pay to the Bank the full amount of any
commitment fee then accrued on the amount of the reduction. No reduction in the
Commitment Amount may be reinstated.
SECTION 2.09. OPTIONAL AND MANDATORY PREPAYMENTS. (a) Each
Borrower may, upon at least one (1) Business Day's notice to the Bank (which
notice shall not thereafter be revocable by such Borrower), prepay any Loans in
whole at any time, or from time to time in part in an aggregate principal amount
not less than $100,000 and in larger integral multiples of $100,000, by paying
the principal amount to be prepaid together with accrued interest thereon to the
date of prepayment.
(b) If at any time the aggregate principal amount of all Loans
outstanding to any Borrower exceeds the Maximum Amount for such Borrower, such
Borrower immediately shall prepay such principal amount of one or more Loans
made to such Borrower (together with accrued interest thereon), as may be
necessary so that after such prepayment the aggregate principal amount of all
Loans outstanding to such Borrower does not exceed the Maximum Amount for such
Borrower.
(c) If at any time the aggregate principal amount of all Loans
outstanding to the Borrowers exceeds the Commitment Amount, the Borrowers shall
immediately prepay such principal amount of one or more Loans (together with
accrued interest thereon), as may be necessary to eliminate such excess.
SECTION 2.10. GENERAL PROVISIONS AS TO PAYMENTS. (a) Payment
of principal of and interest on the Loans and of fees and all other amounts due
hereunder shall be made not later than 2:00 p.m. (Boston time) on the date when
due, in Federal or other funds immediately available in Boston, to the Bank at
its address referred to in Section 9.01. Whenever any payment of principal of,
or interest on, the Loans or of fees shall be due on a day which is not a
Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day and interest shall accrue during such extension. If the
date for any payment of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.
(b) Each Borrower agrees that payments by such Borrower
hereunder and under any of the other Loan Documents shall be made without setoff
or counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings, compulsory
loans, restrictions or conditions of any nature now or hereafter imposed or
levied by any jurisdiction or any political subdivision thereof or taxing or
other authority therein unless such Borrower is compelled by law to make such
deduction or withholding. If any such obligation (other than one arising with
respect to taxes based on or measured by the income or profits of the Bank) is
imposed upon any Borrower with respect to any amount payable by it hereunder or
under any of the other Loan Documents, such Borrower will pay to the Bank on the
date on which such amount is due and payable hereunder or under such other Loan
Document, such additional amount in U.S. dollars as shall be necessary to enable
the Bank to receive the same net amount which the Bank would have received on
such due date had no such obligation been imposed upon such Borrower. Each
Borrower will deliver promptly to the Bank certificates or other valid vouchers
for all taxes or other charges deducted from or paid with respect to payments
made by such Borrower hereunder or under such other Loan Document.
SECTION 2.11. COMPUTATION OF INTEREST AND FEES. All interest
and fees hereunder shall be computed on the basis of a year of 360 days and paid
for the actual number of days elapsed. The Bank's determination of interest
rates shall be conclusive and binding for all purposes, absent manifest error.
-9-
SECTION 2.12. RECOURSE TO ASSETS. Loans made to each Borrower
hereunder shall be paid solely to the account of that Borrower and used by that
Borrower solely in accordance with Section 5.10 hereof. The obligations of each
Borrower under this Agreement and the Loan Documents are several and not joint.
The principal amount of the Loans made for use by a particular Borrower and
accrued interest thereon and any fees or additional amounts payable in
connection with or relating to such Loans pursuant to this Agreement, including,
without limitation, Sections 2.06, 7.01 and 8.03 hereof, shall be paid or repaid
solely from the assets of such Borrower and the Bank shall have no right of
recourse or offset against the assets of any other Borrower with respect to such
Loans or such other obligations or amounts, or any default in respect thereto.
ARTICLE III
CONDITIONS
SECTION 3.01. EFFECTIVENESS. (a) This Agreement shall become
effective on the date that each of the following conditions shall have been
satisfied:
(i) receipt by the Bank of counterparts hereof signed by each
of the Borrowers;
(ii) receipt by the Bank of a duly executed Note dated on or
before the Effective Date complying with the provisions of Section 2.04;
(iii) receipt by the Bank of opinions of Ropes & Xxxx, special
counsel to the Borrowers, and E. Xxxxx Xxxxx, Jr., General Counsel to each
Trust, substantially in the form of EXHIBITS C-1 and C-2 attached hereto which
are satisfactory to the Bank in all respects;
(iv) receipt by the Bank of a certificate manually signed by
the assistant secretary of each of the Borrowers to the effect set forth in
clauses (b) (if a Borrowing will occur on the Effective Date), (c) and (d) of
Section 3.02, such certificate to be dated the Effective Date and to be in form
and substance satisfactory to the Bank;
(v) receipt by the Bank of a manually signed certificate from
the Secretary of each Trust, in form and substance satisfactory to the Bank and
dated the Effective Date, as to the incumbency of, and bearing manual specimen
signatures of, the officers of such Trust who are authorized to execute and take
actions under the Loan Documents, as to the Custodian and Investment Adviser of
such Trust and each Series thereof, if applicable, and certifying and attaching
copies of (A) such Trust's declaration of trust or articles of incorporation or
organization, as applicable, and by-laws as then in effect, (B) duly authorized
resolutions of such Trust's Board of Trustees or Board of Directors, as
applicable, authorizing for the Trust and each Series thereof, the Borrowings
and transactions contemplated hereby, (C) the current Prospectus and Statement
of Additional Information of the Trust or each of the Series of the Trust, as
applicable, and (D) the Annual Reports and Semi-Annual Reports to Shareholders
of the Trust or the Series of the Trust, as applicable, for the two most
recently ended fiscal years of each;
(vi) satisfactory completion by the Bank of due diligence
with respect to the Borrowers;
(vii) the Bank being satisfied in its sole discretion that
there has been no material adverse change in the business, assets, financial
condition or prospects of any of the
-10-
Borrowers since the date of the most recent financial statements of the
applicable Borrower referred to in Section 4.07;
(viii) receipt by the Bank of all documents, opinions and
instruments it may reasonably request prior to the execution of this Agreement
relating to compliance with applicable rules and regulations promulgated by the
Federal Reserve Board and other governmental and regulatory authorities, the
authority for and the validity and enforceability of this Agreement and the
Note, and any other matters relevant hereto, all in form and substance
satisfactory to the Bank;
(ix) receipt by the Bank of a long form legal existence
certificate, along with a good standing certificate, for each Trust from the
Secretary of State of the jurisdiction of such Trust's organization or
incorporation, as applicable, dated no more than ten (10) days prior to the
Effective Date;
(x) receipt by the Bank of a copy of each Trust's certificate
or articles of incorporation or organization or certificate or declaration of
trust, as applicable, certified as of a date no more than ten (10) days prior to
the Effective Date by the Secretary of State of the jurisdiction of such Trust's
organization or incorporation, as applicable; and
(xi) receipt by the Bank of payment of all fees and expenses
(including fees and disbursements of special counsel for the Bank) then payable
hereunder and under the other Loan Documents;
PROVIDED that this Agreement shall not become effective or be binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
December 31, 1999.
(b) After the Effective Date, upon the written consent of the Bank, any
Additional Trust may become a Trust hereunder and for all purposes of the Loan
Documents and any Additional Series may become a Series hereunder and for all
purposes of the Loan Documents, in each case only when the Additional Trust or
the applicable Trust, on behalf of such Additional Series, shall have delivered
to the Bank an executed addendum to each of the Loan Documents reflecting the
addition of such Additional Trust or Additional Series, as applicable, along
with the following:
(i) copies of each of the documents required by Section
3.01(a)(iv), (v), (ix) and (x) (with such changes as are applicable to reflect
the appropriate jurisdiction and nature of organization of any Additional Trust,
and with such changes to the dates of the documents required by such clauses as
such Additional Trust or such Trust, on behalf of such Additional Series, and
the Bank shall agree) with respect to such Additional Trust or Additional
Series;
(ii) an opinion of counsel to such Additional Trust or
Additional Series substantially in the form of EXHIBIT C attached hereto (with
such changes as are applicable to reflect the appropriate jurisdiction and
nature of organization of such Additional Trust or, in the case of an Additional
Series, the applicable Trust);
each of the foregoing in form and substance reasonably satisfactory to the Bank.
The Bank shall promptly provide written notice to the Borrowers when all of the
requirements of this clause (b) of this Section 3.01 have been satisfied.
SECTION 3.02. ALL BORROWINGS. The obligation of the Bank to
make a Loan on the occasion of any Borrowing is subject to the satisfaction of
the following conditions:
(a) receipt by the Bank of a Notice of Borrowing (or a telephonic
notice of borrowing) as required by Section 2.02(a) and the certificate required
to be delivered to the Bank pursuant
-11-
to Section 5.01(c), in each case which is satisfactory to the Bank in all
respects, along with all documents and information the Bank may reasonably
request to establish compliance with applicable rules and regulations
promulgated by the Federal Reserve Board;
(b) immediately after such Borrowing, the aggregate outstanding
principal amount of the Loans outstanding to the Borrower requesting the Loan
will not exceed the Maximum Amount for such Borrower and, immediately after such
Borrowing, the aggregate principal amount of all Loans outstanding to all
Borrowers will not exceed the Commitment Amount;
(c) immediately before and after such Borrowing, no Default or Event of
Default with respect to the Borrower requesting the Loan shall have occurred and
be continuing; and
(d) the representations and warranties of the Borrower requesting the
Loan contained in this Agreement and the other Loan Documents shall be true on
and as of the date of such Borrowing.
Each Borrowing hereunder shall be deemed to be a representation and warranty on
the date of such Borrowing by the Borrower requesting the Loan as to the facts
specified in clauses (b), (c) and (d) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower severally represents and warrants as to itself
and, if the Borrower is a Trust acting on behalf of one or more of its Series,
such Borrower also represents and warrants as to such Trust, where applicable,
that:
SECTION 4.01. EXISTENCE AND POWER; INVESTMENT COMPANY. (a)
SCHEDULE 1 attached hereto accurately and completely lists the full legal name,
principal business address and the nature and jurisdiction of organization of
the Borrower, or if the Borrower is a Trust acting on behalf of one or more
Series, of such Trust and such Series. The Borrower, or if the Borrower is a
Trust acting on behalf of one or more Series, the Trust is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization as set forth on SCHEDULE 1 attached hereto and has all corporate or
trust powers and all authorizations and approvals required to carry on its
business as now conducted.
(b) The Borrower, or if the Borrower is a Trust acting on
behalf of one or more Series, the Trust is an open-end management investment
company registered as such under the Investment Company Act, and the outstanding
shares of each class of its stock (i) have been duly issued and are fully paid
and non-assessable, (ii) have been duly registered under the Securities Act of
1933, as amended, and (iii) have been sold only in states or other jurisdictions
in which all filings required to be made under applicable state securities laws
have been made.
(c) If the Borrower is a Trust acting on behalf of a Series,
that Series of such Trust has been duly established as a separate series of such
Trust, and its assets and liabilities are segregated from the assets and
liabilities of each other Series of such Trust. That Series is not subject to
any liabilities of any other Series of such Trust other than expenses that are
not chargeable to a particular Series of such Trust but which are appropriately
allocated among the Series of such Trust, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. The Trust is not subject to any liabilities of any other Trust.
-12-
SECTION 4.02. AUTHORIZATION; NO CONTRAVENTION. The execution,
delivery and performance by the Borrower of this Agreement, the Note and each of
the other Loan Documents to which it is a party are within its trust or
corporate powers, as applicable, have been duly authorized by all necessary
trust or corporate action, require no authorization or action by or in respect
of, or filing with, any governmental body, agency or official or any shareholder
or creditor of the Borrower, and do not contravene, or constitute a default
under, any provision of applicable law or regulation (including, without
limitation, the Investment Company Act), the certificate or articles of
organization or incorporation or declaration of trust, as applicable, or by-laws
of the Borrower, any agreement, judgment, injunction, order, decree or other
instrument binding upon the Borrower or the Borrower's most recent Prospectus or
Statement of Additional Information, or result in the creation or imposition of
any Lien on any assets of the Borrower.
SECTION 4.03. BINDING EFFECT. Each of the Loan Documents has
been duly executed and delivered by the Borrower. Each of this Agreement and the
other Loan Documents constitutes a valid and binding agreement of the Borrower
and the Note constitutes a valid and binding obligation of the Borrower, in each
case enforceable in accordance with their terms, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights.
SECTION 4.04. COMPLIANCE WITH MARGIN RULES. The execution,
delivery and performance by the Borrower of this Agreement, the Note and the
other Loan Documents and the transactions contemplated hereunder and thereunder
will not violate Regulation U or Regulation X of the Board of Governors of the
Federal Reserve System.
SECTION 4.05. AFFILIATED PERSONS. So far as appears from the
records of the Borrower, neither the Bank nor any Affiliate of the Bank known to
the Borrower is an Affiliated Person of the Borrower and none of the Borrower or
any Affiliate of the Borrower is an Affiliated Person of the Bank or of any
Affiliate of the Bank known to the Borrower.
SECTION 4.06. SUBSIDIARIES. The Borrower has no
Subsidiaries.
SECTION 4.07. FINANCIAL INFORMATION. (a) The statement of
assets and liabilities of the Borrower as of the last day of the Borrower's
fiscal year most recently ended prior to the Effective Date (or, with respect to
each Additional Trust or Additional Series which becomes a Trust or Series, as
applicable, hereunder, the fiscal year most recently ended prior to the date
such Additional Trust or Additional Series becomes a Trust or Series, as
applicable, hereunder), and the related Statements of Operations and Changes in
Net Assets for the fiscal year ended on such date, reported on by independent
public accountants of nationally recognized standing and set forth in the Annual
Report to Shareholders for the fiscal year ended on such date, together with the
notes and schedules thereto, present fairly, in all material respects, in
conformity with generally accepted accounting principles, the financial position
of the Borrower as of such date.
(b) Since the last day of the Borrower's fiscal year most
recently ended prior to the Effective Date (or, with respect to each Additional
Trust or Additional Series which becomes a Trust or Series hereunder, the fiscal
year most recently ended prior to the date such Additional Trust or Additional
Series becomes a Trust or Series hereunder), there has been no material adverse
change in the business, financial position, results of operations or prospects
of the Borrower.
SECTION 4.08. LITIGATION. There is no action, suit or
proceeding pending against, or, to the knowledge of the Borrower, threatened
against or affecting, the Borrower or any Person with whom it has entered into a
material contract or agreement before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable possibility
-13-
of an adverse decision which could materially adversely affect the business,
financial position, results of operations or prospects of the Borrower, or which
in any manner draws into question the validity or enforceability of this
Agreement, the Note or any of the other Loan Documents or any such material
contract or agreement.
SECTION 4.09. ERISA. (a) The Borrower is not a member of an
ERISA Group and has no liability in respect of any Benefit Arrangement, Plan or
Multiemployer Plan subject to ERISA.
(b) No Loan will constitute a "prohibited transaction" within
the meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue Code
for which an exemption is not available.
SECTION 4.10. TAXES. The Borrower has elected to be treated
and qualifies as a "regulated investment company" within the meaning of the
Internal Revenue Code. The Borrower has timely filed in correct form all United
States Federal income tax returns and all other material tax returns which are
required to be filed by it and has paid all taxes due pursuant to such returns
or pursuant to any assessment received by it. The charges, accruals and reserves
on the books of the Borrower in respect of taxes or other governmental charges
are, in the opinion of the Borrower, adequate.
SECTION 4.11. COMPLIANCE. (a) The Borrower is in compliance
with Section 18 of the Investment Company Act. The Borrower is also in
compliance with all other applicable laws and regulations (including, without
limitation, all other provisions of the Investment Company Act and all rules and
regulations thereunder), all applicable ordinances, decrees, requirements,
orders and judgments of, and all of the terms of any applicable licenses and
permits issued by, any governmental body, agency or official, and all agreements
and instruments to which it may be subject or any of its properties may be
bound, in each case where the violation thereof may have a material adverse
effect on its business, financial position, results of operations or prospects
or call into question the validity or enforceability of this Agreement, the Note
or any of the other Loan Documents. The Borrower is in compliance with all
investment policies and restrictions set forth in its most recent Prospectus and
Statement of Additional Information.
(b) No Default or Event of Default has occurred and is
continuing with respect to the Borrower.
(c) The Borrower is not subject to regulation under any
federal, state, local or foreign statute or regulation (other than the
Investment Company Act) which limits its ability to incur indebtedness. Except
as set forth on SCHEDULE 4.11(c) attached hereto, the Borrower has not entered
into any agreement with any federal, state, local or foreign governmental
authority or regulator limiting its ability to incur indebtedness. The borrowing
limitations adopted by the Borrower in its Prospectus, Statement of Additional
Information or elsewhere are set forth on SCHEDULE 4.11(c) attached hereto.
SECTION 4.12. FULL DISCLOSURE. All information heretofore
furnished by the Borrower to the Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Borrower to the Bank will be, true and accurate in
all material respects on the date as of which such information is stated or
certified. The Borrower has disclosed to the Bank in writing all facts which, to
its knowledge after reasonable inquiry, materially and adversely affect or may
affect (to the extent the Borrower can now reasonably foresee), the business,
operations or financial condition of the Borrower or the ability of the Borrower
to perform its obligations under the Loan Documents.
-14-
ARTICLE V
COVENANTS
Each Borrower severally agrees that, so long as the Bank has
any Commitment to that Borrower hereunder or any amount is payable by that
Borrower under the Note:
SECTION 5.01. INFORMATION. The Borrower will deliver to the
Bank:
(a) as soon as available and in any event within 60 days after the end
of each fiscal year of the Borrower, a statement of its assets and liabilities,
including the portfolio of investments, as of the end of such fiscal year and
the related statements of operations and changes in net assets for such fiscal
year, all reported in a manner acceptable to the Securities and Exchange
Commission, together with an audit report thereon issued by independent public
accountants of nationally recognized standing;
(b) as soon as available and in any event within 60 days after the end
of the first semi-annual period of each fiscal year of the Borrower, a statement
of its assets and liabilities including the portfolio of investments, as of the
end of such period, all certified (subject to normal year-end adjustments) as to
fairness of presentation, generally accepted accounting principles and
consistency by the treasurer or vice president of the Borrower or accompanied by
an audit report thereon issued by independent public accountants of nationally
recognized standing;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above and simultaneously with the
delivery of each Notice of Borrowing, a certificate of the treasurer or vice
president of the Borrower (i) stating whether any Default or Event of Default
exists on the date of such certificate and, if any Default or Event of Default
then exists, setting forth the details thereof and the action which the Borrower
is taking or proposes to take with respect thereto and (ii) setting forth in
reasonable detail the Net Asset Value of the Borrower and the calculations
required to establish whether such Borrower is in compliance with the
requirements of Section 5.11 on the date of such certificate;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent accountants which reported on such statements whether anything has
come to their attention to cause them to believe that any Default or Event of
Default with respect to the Borrower existed on the date of such statements;
(e) promptly after the Borrower obtains knowledge of any Default or
Event of Default with respect to such Borrower, a certificate of the treasurer
or vice president of the Borrower setting forth the details thereof and the
action which the Borrower is taking or proposes to take with respect thereto;
(f) promptly upon the filing thereof with the Securities and Exchange
Commission or the mailing thereof to shareholders of the Borrower, copies of all
reports to shareholders, amendments and supplements to the Borrower's
registration statement, Prospectus or Statement of Additional Information, proxy
statements and other materials of a financial or otherwise material nature;
-15-
(g) promptly upon any officer of the Borrower becoming aware of any
action, suit or proceeding of the type described in Section 4.08, notice and a
description thereof and copies of any filed complaint relating thereto; and
(h) from time to time such additional information regarding the
financial position or business of the Borrower as the Bank may reasonably
request.
SECTION 5.02. PAYMENT OF OBLIGATIONS. The Borrower will duly
and punctually pay or cause to be paid the principal and interest on the Loans
made to it and all other amounts payable by it provided for in this Agreement
and the other Loan Documents. The Borrower will pay and discharge, at or before
maturity, all of its material obligations and liabilities, including, without
limitation, tax liabilities, except where the same may be contested in good
faith by appropriate proceedings, and will maintain, in accordance with
generally accepted accounting principles, appropriate reserves for the accrual
of any of the same.
SECTION 5.03. MAINTENANCE OF INSURANCE. The Borrower will
maintain with financially sound and reputable insurance companies, policies with
respect to its property and business against at least such risks (and with no
greater risk retentions) and in at least such amounts as are required by the
Investment Company Act and, in addition, as are customary in the case of
registered open-end investment companies; and will furnish to the Bank, upon
request, information presented in reasonable detail as to the insurance so
carried.
SECTION 5.04. CONDUCT OF BUSINESS AND MAINTENANCE OF
EXISTENCE. The Borrower will continue to engage in business of the same general
type as now conducted by it and the Borrower will, or if the Borrower is a Trust
acting on behalf of one or more of its Series, such Trust will, preserve, renew
and keep in full force and effect its existence as a Delaware business trust or
such other form of organization, as applicable, as indicated for such Trust on
SCHEDULE 1, and its rights, privileges and franchises necessary in the normal
conduct of its business. The Borrower will, or if the Borrower is a Trust acting
on behalf of one or more of its Series, such Trust will, maintain in full force
and effect its registration as a open-end management company under the
Investment Company Act, and, except as provided in Section 5.09 hereof, keep in
full force and effect the existence of the Series as separate series.
SECTION 5.05. COMPLIANCE WITH LAWS. The Borrower will comply
with Section 18 of the Investment Company Act. The Borrower will comply in all
material respects with all other applicable laws, ordinances, rules, regulations
and requirements of governmental authorities (including, without limitation,
ERISA and the other provisions of the Investment Company Act and the rules and
regulations thereunder) except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings or exemptive relief has been
obtained therefrom and remains in effect. The Borrower will file all federal and
other tax returns, reports and declarations required by all relevant
jurisdictions on or before the due dates for such returns, reports and
declarations and will pay all taxes and other governmental assessments and
charges as and when they become due (except those that are being contested in
good faith by the Borrower and as to which the Borrower has established
appropriate reserves on its books and records).
SECTION 5.06. INSPECTION OF PROPERTY, BOOKS AND RECORDS. The
Borrower will keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in relation to
its business and activities; and will permit representatives of the Bank, at the
Bank's expense, to visit and inspect any of its offices, to examine and make
abstracts from any of its books and records and to discuss its affairs, finances
and accounts with its officers, employees and independent public accountants,
all at such reasonable times and as often as may reasonably be desired.
-16-
SECTION 5.07. DEBT. So long as any Loan is outstanding to the
Borrower, the Borrower will not create, assume or suffer to exist any Debt other
than:
(a) Debt arising under this Agreement and the Note; and
(b) Debt arising in connection with portfolio investments and
investment techniques permissible under the Investment Company Act and
consistent with the Borrower's investment objectives and fundamental and
operating investment restrictions;
PROVIDED THAT in no event shall the Borrower, while any Loan is outstanding to
it, (i) enter into or utilize swaps, caps, options, futures contracts, options
on futures contracts or other similar portfolio investments or investment
techniques other than for hedging purposes, (ii) enter into reverse repurchase
agreements, (iii) borrow money or create leverage under any arrangement other
than from the Bank hereunder, or (iv) issue or be or remain liable for or have
outstanding any "senior security" (as defined in the Investment Company Act),
except that the Borrower may borrow from the Bank hereunder. The Borrower will
not issue or have outstanding any preferred stock.
SECTION 5.08. NEGATIVE PLEDGE. The Borrower will not, while
any Loan is outstanding to the Borrower, create, assume or suffer to exist any
Lien on any of its assets, whether now owned or hereafter acquired, or on the
income or profits therefrom, except (a) Liens for taxes, assessments or
governmental charges or levies the payment of which is not at the time required,
and (b) encumbrances created in connection with the Borrower's portfolio
investments (and not for the primary purpose of borrowing money) to the extent
permitted by the provisions of the Borrower's Prospectus and Statement of
Additional Information and Section 5.07 hereof, PROVIDED THAT the aggregate
amount of such encumbered assets of the Borrower pursuant to this clause (c)
does not at any time exceed 5% of the Total Assets of the Borrower.
SECTION 5.09. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The
Borrower will not consolidate or merge with or into any other Person or
reorganize its assets into series of a series corporation or entity (if it
currently has no series) or into a non-series corporation or entity (if it
currently is a series of such an entity), nor will the Borrower sell, lease or
otherwise transfer, directly or indirectly, all or any substantial part of its
assets to any other Person or invest all of its investable assets in any other
open-end management investment company or otherwise invest all of its assets in
a master-feeder or fund-of-funds investment structure or any other multiple
investment company structure except that:
(a) the Borrower may sell its assets in the ordinary course of
business as described in its Prospectus and Statement of Additional Information;
(b) the Borrower may consolidate or merge with or into any other Trust
(or a series thereof), or liquidate or transfer any of its assets to a Trust (or
a series thereof) or an Affiliate of a Trust (or a series thereof) PROVIDED
THAT, in each case, (i) the Borrower shall notify the Banks in writing of its
intention to so consolidate, merge, liquidate or transfer no later than fifteen
(15) Business Days prior to the date of such proposed consolidation, merger,
liquidation or transfer, along with a revised SCHEDULE 2 hereto which gives
effect to such consolidation, merger, liquidation or transfer, (ii) all
Obligations of such Borrower shall have been paid in full on or prior to the
date of such consolidation, merger, liquidation or transfer and (iii) from and
after the date of such consolidation, merger, liquidation or transfer such
Borrower shall no longer be a Borrower under this Agreement and such Borrower
shall no longer be permitted to request any Borrowing; and
(c) the Borrower may invest all of its investable assets in a Trust (or
a series thereof) or an Affiliate of a Trust (or a series thereof), PROVIDED
THAT (i) such Borrower shall notify the
-17-
Bank in writing of its intention to so invest its assets no later than fifteen
(15) Business Days prior to the date of such proposed investment, (ii) all
Obligations of such Borrower shall have been paid in full on or prior to the
date of such investment, and (iii) from and after the date of such investment
such Borrower shall no longer be a Borrower under this Agreement and such
Borrower shall no longer be permitted to request any Borrowing.
SECTION 5.10. USE OF PROCEEDS. The proceeds of the Loans made
under this Agreement to the Borrower will be used by the Borrower solely for
temporary or emergency purposes, including funding redemptions of its shares of
capital stock or beneficial interests.
SECTION 5.11. RATIO OF DEBT TO NET ASSETS. The Borrower will
not permit, at any time, the aggregate amount of its Debt to exceed 33-1/3% of
its Net Assets.
SECTION 5.12. COMPLIANCE WITH REGISTRATION STATEMENT. The
Borrower will at all times comply in all material respects with the investment
objectives, limitations and policies set forth in its Prospectus and Statement
of Additional Information, and will not make any investment, loan, advance or
extension of credit inconsistent with those investment objectives, limitations
or policies. The Borrower will not permit its investment objective or any
fundamental policy or its diversified status (if it is diversified) to be
changed from those in effect on the Effective Date (or, with respect to each
Additional Trust or Additional Series which becomes a Trust or a Series
hereunder, on the date such Additional Trust or Additional Series becomes a
Trust or a Series hereunder) and reflected in its Prospectus and Statement of
Additional Information delivered to the Bank on the Effective Date (or, with
respect to each Additional Trust or Additional Series, on the date such Trust or
Additional Series becomes a Trust or a Series hereunder).
SECTION 5.13. NON-AFFILIATION WITH BANK. The Borrower will not
at any time become an Affiliated Person of the Bank or any Affiliate of the Bank
known to the Borrower and the Borrower will use its best efforts to ensure that
none of its Affiliates is or becomes an Affiliated Person of the Bank or any
Affiliate of the Bank known to the Borrower.
SECTION 5.14. DEPOSIT ACCOUNT. The Borrower shall specify a
deposit account with its Custodian in which Loans shall be deposited.
SECTION 5.15. REGULATED INVESTMENT COMPANY. The Borrower will
maintain its status as a "regulated investment company" under the Internal
Revenue Code at all times and will make sufficient distributions to qualify to
be taxed as a "regulated investment company" pursuant to subchapter M of the
Internal Revenue Code.
SECTION 5.16. NO SUBSIDIARY. The Borrower will not have at any
time any Subsidiary.
SECTION 5.17. ERISA. The Borrower will not become a member of
any ERISA Group and will not incur any liability in respect of any Benefit
Arrangement, Plan or Multiemployer Plan subject to ERISA.
SECTION 5.18. DISTRIBUTIONS. The Borrower will not make any
Distribution to any of its shareholders if a Default or Event of Default has
occurred and is continuing with respect to such Borrower or will result from
such Distribution, PROVIDED THAT the Borrower shall at all times be permitted to
make Distributions that are required to enable it to maintain its status as a
"regulated investment company" under subchapter M of the Internal Revenue Code.
-18-
ARTICLE VI
DEFAULTS
SECTION 6.01. EVENTS OF DEFAULT. If one or more of the
following events ("Events of Default") shall have occurred and be continuing
with respect to any Borrower:
(a) such Borrower shall fail to pay any principal of any Loan to such
Borrower when the same shall become due and payable or such Borrower shall fail
to pay any interest on any Loan to such Borrower, any fees or any other amount
payable by such Borrower hereunder;
(b) such Borrower shall fail to observe or perform any covenant
contained in Article V, or if the Borrower is a Trust acting on behalf of one or
more of its Series, the Trust shall fail to comply with Section 5.04 hereof;
(c) such Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement or in any other Loan Document (other than
those covered by clause (a) or (b) above) for ten (10) days after written notice
thereof has been given to such Borrower by the Bank;
(d) any representation, warranty, certification or statement made (or
deemed made) by such Borrower as to itself or, if such Borrower is a Trust
acting on behalf of one or more of its Series, as to such Trust, in this
Agreement, any other Loan Document or in any certificate, financial statement or
other document delivered pursuant to this Agreement or any other Loan Document
shall prove to have been incorrect in any material respect when made (or deemed
made);
(e) such Borrower shall fail to pay any Debt of the Borrower when due
or within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Debt of such Borrower or enables (or, with
the giving of notice or lapse of time or both, would enable) the holder of such
Debt or any Person acting on such holder's behalf to accelerate the maturity
thereof;
(g) such Borrower, or if the Borrower is a Trust acting on behalf of
one or more of its Series, such Trust, shall seek the appointment of a trustee,
receiver, liquidator, custodian or other similar official for it or any of its
Series or any substantial part of its property or the property of any of its
Series, or shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or any of its
Series or its or any of its Series' debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator or other similar official for it or any
substantial part of its property or the property of any of its Series, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it or
against any of its Series or such Borrower or such Trust or any of its Series
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any action to
authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against
such Borrower or, if the Borrower is a Trust acting on behalf of one or more of
its Series, such Trust, seeking liquidation, reorganization or other relief with
respect to it or any of its Series or its or any of its Series' debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar
-19-
official of it or any of its Series and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60 days; or an
order for relief shall be entered against the Borrower or such Trust or any of
its Series under the federal bankruptcy laws as now or hereafter in effect;
(i) a judgment or order for the payment of money in excess of $500,000
shall be rendered against such Borrower and such judgment or order shall
continue unsatisfied and unstayed for a period of ten (10) days; or
(j) any investment advisory agreement or management agreement which is
in effect on the Effective Date (or, with respect to each Additional Trust or
Additional Series which becomes a Trust or a Series hereunder, on the date such
Additional Trust or Additional Series becomes a Trust or a Series hereunder) for
the Borrower shall terminate, or the Investment Adviser shall cease to be the
investment adviser to the Borrower;
then, and in every such event, the Bank may by notice to the defaulting Borrower
terminate the Commitment as to that Borrower, and it shall thereupon terminate,
and by notice to the defaulting Borrower declare the Loans to such Borrower
(together with accrued interest thereon) to be, and such Loans (together with
accrued interest thereon) shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrowers; PROVIDED that in the case of any of the
Events of Default specified in clause (g) or (h) above, automatically without
any notice to the defaulting Borrower or any other act by the Bank, the
Commitment shall thereupon terminate as to the defaulting Borrower and the Loans
to the defaulting Borrower (together with accrued interest thereon) shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrowers.
Notwithstanding any provision of this Agreement to the contrary, (i) a
Trust Default or a Trust Event of Default with respect to a Trust acting on
behalf of one or more of its Series shall constitute a Default or an Event of
Default, as the case may be, with respect to all Series of that Trust, and (ii)
except as provided in the preceding clause (i) if there occurs any Default or
Event of Default solely with respect to a particular Borrower, such Default or
Event of Default shall not constitute, in and of itself, a Default or an Event
of Default with respect to any other Borrower and shall not permit the Bank to
terminate the Commitment or exercise any of its other remedies as to any other
Borrower.
ARTICLE VII
CHANGE IN CIRCUMSTANCES
SECTION 7.01. INCREASED COST AND REDUCED RETURN. (a) If any
applicable law, rule or regulation, or any new law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency in connection therewith:
(i) shall subject the Bank (or its Lending Office) to any tax, duty or
other charge with respect to its Loans, its Note or its Commitment, or shall
change the basis of taxation of payments to the Bank (or its Lending Office) of
the principal of or interest on its Loans or any other amounts due under this
Agreement or its Commitment, in each case except for any tax on, or changes in
the rate of tax on the overall net income of the Bank or its Lending Office
-20-
imposed by the jurisdiction in which the Bank's principal executive office or
Lending Office is located; or
(ii) shall impose, modify or deem applicable any reserve (including,
without limitation, any such requirement imposed by the Board of Governors of
the Federal Reserve System), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, the Bank (or its Lending Office) or shall impose on the Bank (or
its Lending Office) any other condition affecting its Loans, its Note or its
Commitment;
and the result of any of the foregoing is to increase the cost to the Bank (or
its Lending Office) of making or maintaining any Loan to any Borrower, or to
reduce the amount of any sum received or receivable by the Bank (or its Lending
Office) from any Borrower under this Agreement or under its Note with respect
thereto, by an amount deemed by the Bank to be material, then, upon demand by
the Bank and delivery to such Borrower of the certificate required by clause (c)
hereof, such Borrower shall pay to the Bank such additional amount or amounts as
will compensate the Bank for such increased cost or reduction.
(b) If the Bank shall determine that any change in any
existing applicable law, rule or regulation or any new law, rule or regulation,
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any new request or directive of general applicability regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of the Bank (or its parent corporation) as a
consequence of such Bank's obligations hereunder to a level below that which the
Bank (or its parent corporation) could have achieved but for such law, change,
request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by the Bank to be material, then from time
to time, upon demand by the Bank, each Borrower shall pay to the Bank such
additional amount or amounts as will compensate the Bank (or its parent
corporation) for such reduction.
(c) The Bank will promptly notify each Borrower of any event
of which it has knowledge, occurring after the date hereof, which will entitle
the Bank to compensation pursuant to this Section and will designate a different
Lending Office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the judgment of the Bank, be otherwise
disadvantageous to the Bank. A certificate of any Bank claiming compensation
under this Section and setting forth the additional amount or amounts to be paid
to it hereunder and the calculations used in determining such additional amount
or amounts shall be conclusive in the absence of manifest error. In determining
such amount, the Bank may use any reasonable averaging and attribution methods.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. NOTICES. All notices, requests, consents and
other communications to any party hereunder shall be in writing (including
facsimile transmission or similar writing) and shall be given to such party at
its address or facsimile number set forth on SCHEDULE 1 attached hereto. Each
such notice, request, consent or other communication shall be effective (a) if
given by facsimile, when such facsimile is transmitted to the facsimile number
specified in this Section and the appropriate confirmation is received, (b) if
given by mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (c) if given by any other
means, when delivered at the address specified in this Section.
-21-
SECTION 8.02. NO WAIVERS. No failure or delay by any party
hereunder in exercising any right, power or privilege hereunder or under the
Note shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 8.03. EXPENSES; DOCUMENTARY TAXES; INDEMNIFICATION.
(a) Each Borrower, severally and not jointly, agrees to pay (i) all reasonable
out-of-pocket expenses of the Bank and its Affiliates, including the fees and
disbursements of special counsel for the Bank, in connection with the
preparation, negotiation and closing of this Agreement and the other Loan
Documents any waiver or consent hereunder or any amendment hereof, any waiver of
any Default or Event of Default or alleged Default or Event of Default
hereunder, and any termination hereof, and (ii) if a Default or an Event of
Default occurs, all reasonable out-of-pocket expenses incurred by the Bank and
its Affiliates, including fees and disbursements of counsel (including
reasonable allocated costs of in-house counsel), in connection with such Default
or Event of Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom PROVIDED, HOWEVER, that any such amounts payable
in connection with a Default or Event of Default by a particular Borrower or
arising out of or relating to the Loans made to a particular Borrower shall only
be payable out of the assets of such Borrower and no other Borrower. Each
Borrower, severally and not jointly, agrees to indemnify the Bank against any
transfer taxes, documentary taxes, assessments or charges made by any
governmental authority by reason of the execution and delivery of this Agreement
or the Note. All amounts to be paid pursuant to this clause (a) (other than
pursuant to clause (ii) of the first sentence of this clause (a)) shall be paid
by the Borrowers PRO RATA based on the relative asset size of each such Borrower
as of the first day of each calendar quarter or based on such other method as
the Boards of Directors or Boards of Trustees, as applicable, of the Trust(s)
shall determine with prior written notice to the Bank.
(b) Each Borrower agrees to indemnify the Bank and its
Affiliates and hold the Bank and its Affiliates harmless from and against any
and all liabilities, losses, damages, costs and expenses of any kind, including,
without limitation, the reasonable fees and disbursements of counsel, which may
be incurred by the Bank or any of its Affiliates in connection with any
investigative, administrative or judicial proceeding (whether or not the Bank or
its Affiliate shall be designated a party thereto) relating to or arising out of
this Agreement or the other Loan Documents or any actual or proposed use of the
proceeds of the Loans, PROVIDED that the Bank and its Affiliates shall not have
the right to be indemnified hereunder for their own gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction.
SECTION 8.04. SET OFF. Regardless of the adequacy of any
collateral, during the continuance of any Event of Default as to a particular
Borrower, any deposits or other sums credited by or due from the Bank solely to
that Borrower, and any securities or other property of that Borrower in the
possession of the Bank may be applied to or set off by the Bank against the
payment of that Borrower's Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of that Borrower to the Bank.
SECTION 8.05. AMENDMENTS AND WAIVERS. Any provision of this
Agreement or the Note or any of the other Loan Documents may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the Borrowers and the Bank.
SECTION 8.06. SUCCESSORS AND ASSIGNS. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that no Borrower may
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of the Bank.
-22-
(b) The Bank may at any time assign all or any portion of its
rights under this Agreement and the Note to a Federal Reserve Bank. No such
assignment shall release the Bank from its obligations hereunder.
SECTION 8.07. GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS
AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF
THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH BORROWER
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS
OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING
MADE UPON SUCH BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN SECTION 8.01. EACH
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
SECTION 8.08. COUNTERPARTS; INTEGRATION. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement and each of the other Loan Documents constitute the
entire agreement and understanding among the parties hereto and supersede any
and all prior agreements and understandings, oral or written, relating to the
subject matter hereof. The provisions of this Agreement are severable and if any
one clause or provision hereof shall be held invalid or unenforceable in whole
or in part in any jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in such jurisdiction, and
shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Agreement in any
jurisdiction.
SECTION 8.09. WAIVER OF JURY TRIAL. EACH BORROWER AND THE BANK
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
[Signature page follows.]
-23-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as an agreement under seal by their respective
authorized officers as of the day and year first above written.
XXXXXXXX XXXXXXXXX INSTITUTIONAL FUNDS, on
behalf of each of its series Convertible
Fund, Large Cap Growth Fund, Mid Cap Growth
Fund, Small Cap Growth Fund, Mini Cap Growth
Fund, Value Fund, High Quality Bond Fund,
High Yield Bond Fund, Short Intermediate
Fixed Income Fund, Emerging Countries Fund,
Global Blue Chip Fund, Global Growth &
Income Fund, Global Healthcare Fund, Global
Technology Fund, International Core Growth
Fund, International Small Cap Growth Fund,
Latin America Fund, Pacific Rim Fund,
Worldwide Growth Fund
By:________________________________
Title:
BANKBOSTON, N.A.
By:________________________________
Title:
SCHEDULE 1
----------
SERIES:
TRUST:
XXXXXXXX XXXXXXXXX INSTITUTIONAL - Convertible Fund
FUNDS - Large Cap Growth Fund
- Mid Cap Growth Fund
Address: 000 Xxxx Xxxxxxxx, 30th Floor - Small Cap Growth Fund
Xxx Xxxxx, Xxxxxxxxxx 00000 - Mini Cap Growth Fund
Tel: - Value Fund
Fax: - High Quality Bond Fund
- High Yield Bond Fund
Jurisdiction of Incorporation: - Short Intermediate Fixed Income Fund
Delaware business trust - Emerging Countries Fund
- Global Blue Chip Fund
- Global Growth & Income Fund
- Global Healthcare Fund
- Global Technology Fund
- International Core Growth Fund
- Latin America Fund
- Pacific Rim Fund
- Worldwide Growth Fund
BANK:
BANKBOSTON, N.A.
Lending Office:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx, Director
EXHIBIT A
FORM OF NOTE
$30,000,000 ____________, 1999
FOR VALUE RECEIVED, each of the undersigned, on behalf of itself or, if
such Trust has divided its assets into series or portfolios, on behalf of each
particular Series listed on the signature pages hereto (the undersigned, on
behalf of itself or each such particular Series, as applicable, shall be
referred to herein as a "Borrower") hereby promises to pay to the order of
BANKBOSTON, N.A. (the "Bank") at the head office of the Bank at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000:
(a) prior to or on the Termination Date, the principal amount
of THIRTY MILLION DOLLARS ($30,000,000) or, if less, the aggregate
unpaid principal amount of Loans advanced by the Bank to such Borrower
pursuant to the Credit Agreement dated as of ________, 1999 (as amended
and in effect from time to time, the "Credit Agreement"), among the
undersigned and the Bank;
(b) the principal outstanding hereunder to such Borrower from
time to time at the times provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time
outstanding to such Borrower from the Effective Date (as defined in the
Credit Agreement) through and including the maturity date hereof at the
times and at the rates provided in the Credit Agreement.
This Note evidences borrowings under and has been issued by each of the
Borrowers in accordance with the terms of the Credit Agreement. The Bank and any
holder hereof is entitled to the benefits of the Credit Agreement and the other
Loan Documents, and may enforce the agreements of each of the Borrowers
contained therein, and any holder hereof may exercise the respective remedies
provided for thereby or otherwise available in respect thereof, all in
accordance with the respective terms thereof. The obligations of each Borrower
hereunder are of that Borrower only and not of any other Borrower. All
capitalized terms used in this Note and not otherwise defined herein shall have
the same meanings herein as in the Credit Agreement.
Each Borrower irrevocably authorizes the Bank to make or cause to be
made, at or about the date of any Loan to such Borrower or at the time of
receipt of any payment of principal of this Note from such Borrower, an
appropriate notation on the grid attached to this Note, or the continuation of
such grid, or any other similar record, including computer records, reflecting
the making of such Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Loans to any Borrower set forth on the grid attached
to this Note, or the continuation of such grid, or any other similar record,
including computer records, maintained by the Bank with respect to any Loans
shall be PRIMA FACIE evidence of the principal amount thereof owing and unpaid
to the Bank, but the failure to record, or any error in so recording, any such
amount on any such grid, continuation or other record shall not limit or
otherwise affect the obligation of such Borrower hereunder or under the Credit
Agreement to make payments of principal of and interest on this Note when due.
Each Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
-2-
If any one or more of the Events of Default shall occur with respect to
any Borrower, the entire unpaid principal amount of this Note outstanding to
such Borrower and all of the unpaid interest accrued thereon may become or be
declared due and payable in the manner and with the effect provided in the
Credit Agreement.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any further occasion.
Each Borrower and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF EACH BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). EACH BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY
FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF
SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON SUCH
BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN SECTION 8.01 OF THE CREDIT
AGREEMENT. EACH BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
-3-
IN WITNESS WHEREOF, the undersigned has caused this Note to be signed
in its name by its duly authorized officer on behalf of each Borrower as of the
day and year first above written.
XXXXXXXX XXXXXXXXX INSTITUTIONAL FUNDS, on
behalf of each of its series Convertible
Fund, Large Cap Growth Fund, Mid Cap Growth
Fund, Small Cap Growth Fund, Mini Cap Growth
Fund, Value Fund, High Quality Bond Fund,
High Yield Bond Fund, Short Intermediate
Fixed Income Fund, Emerging Countries Fund,
Global Blue Chip Fund, Global Growth &
Income Fund, Global Healthcare Fund, Global
Technology Fund, International Core Growth
Fund, International Small Cap Growth Fund,
Latin America Fund, Pacific Rim Fund,
Worldwide Growth Fund
By:________________________________
Title:
-----------------------------------------------------------------------------------------------------------------------------
Amount of Balance of
Applicable Amount Principal Paid Principal Notation
Date Borrower of Loan or Prepaid Unpaid Made By:
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------
EXHIBIT B
FORM OF
NOTICE OF BORROWING
DATE:
-----------------------------------
TO: BankBoston, N.A.
ATTN:
-----------------------------------
FROM: [Trust] [on behalf of its Series __________] (the "Borrower")
In connection with the Credit Agreement currently in effect with you,
please increase the outstanding balance of Loans as indicated below. The Loans
should be recorded on the books of the Borrower as a liability of the Borrower
to the Bank and interest payable to the Bank should be recorded at the agreed
upon rate.
(a) Date of proposed Borrowing: ___________________________________
(b) Amount of Loan requested: $__________________________________
(c) Cumulative Loans to this
Borrower (after this Loan): $__________________________________
(d) Aggregate Debt of the Borrower: $__________________________________
(e) Net Assets of the Borrower: $__________________________________
(f) Ratio of Debt to Net Assets: ___________________________________%
(g) Maximum Loans permitted
to this Borrower: $__________________________________
(h) Aggregate Loans outstanding
to all Borrowers (after this Loan): $__________________________________
(i) Commitment Amount: $__________________________________
________________________________
Authorized Signature
Wire to:
_____________________________
_____________________________
_____________________________
EXHIBIT C
Text of Borrowers' Counsel Opinion
1. The Trust is a Delaware business trust duly organized and validly
existing and authorized to transact business under the laws of the State of
Delaware. The Trust is an open-end management investment company registered as
such under the Investment Company Act and the outstanding shares of each class
of its stock (a) have been duly issued and are fully paid and non-assessable,
(b) have been duly registered under the Securities Act of 1933, as amended and
(c) have been issued pursuant to all filings required to be made under State
securities or so-called "Blue Sky" laws. The Trust has the power and authority
to own its properties and to carry on its business as presently conducted, and
is qualified to do business in those jurisdictions in which its ownership of
property or the nature of its business activities is such that failure to
receive or retain such qualification would have a material adverse effect upon
the business, operations or condition (financial or otherwise) of the Trust or
any of its Series.
2. Each Series of the Trust has been duly established as a separate
series of the Trust, and its assets and liabilities are segregated from the
assets and liabilities of each other Series of the Trust.
3. Each of the Borrowers has all trust power and authority necessary to
execute and deliver the Agreement and the Note, to make the borrowings provided
for therein and to perform its obligations under the Agreement and the Note. All
such action has been duly authorized by all necessary proceedings on each of
such Borrower's part.
4. The Agreement and the Note have each been duly and validly executed
and delivered by each Borrower which is a party thereto. The Agreement
constitutes the legal, valid and binding agreement of each Borrower, and the
Note constitute the legal, valid and binding obligation of each Borrower, in
each case enforceable against such Borrower in accordance with their terms.
5. There is no pending or threatened litigation, governmental
proceeding, inquiry or investigation by or against any Borrower which involves
or could involve any material adverse effect on the business, operations,
prospects or condition (financial or otherwise) of that Borrower.
6. Neither the execution and delivery of the Agreement and the Note by
each Borrower, the consummation of the transactions contemplated therein nor the
compliance by each Borrower with the terms and provisions thereof will conflict
with or result in a breach of any of the terms, conditions or provisions of the
declaration of trust or by-laws of the Trust, any existing Federal, Delaware or
Massachusetts law, rule or regulation, the most recent Prospectus or Statement
of Additional Information of any such Borrower, or any agreement or instrument
to which any such Borrower is a party or by which it is bound or to which it is
subject, or constitute a default thereunder or result in the creation or
imposition of any lien of any nature whatsoever upon any of the property of any
such Borrower pursuant to the terms of any such agreement or instrument.
7. No authorization, consent, approval, license, exemption or other
action by, and no registration, qualification, designation, declaration or
filing with, any Federal, Massachusetts or Delaware official body is or will be
necessary or advisable in connection with the execution and delivery of the
Agreement or the Note, consummation of the transactions contemplated therein, or
performance of or compliance with the terms and conditions thereof.
-2-
8. The execution, delivery and performance by each Borrower of the
Agreement and the Note and the transactions contemplated thereunder are exempt
from and not subject to any limitations under Regulation U or Regulation X of
the Board of Governors of the Federal Reserve System.
