Exhibit B
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Exhibit B
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
December 1, 2000
among
the Borrowers party hereto,
the Banks party hereto,
The Bank of New York, as Syndication Agent,
State Street Bank and Trust Company, as Co-Documentation Agent
National Australia Bank Limited, as Co-Documentation Agent
and
Bank One, NA,
as Administrative Agent
Arranged by
Banc One Capital Markets, Inc.,
as Sole Lead Arranger and Sole Book Manager
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Table of Contents
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Page
ARTICLE I DEFINITIONS ..............................................1
1.1. Definitions ...........................................1
1.2. Accounting Terms and Determinations ...................9
1.3. Assumptions Regarding Structure .......................9
1.4. Authority of Adviser; Adviser Disclaimer ..............9
ARTICLE II THE CREDIT ................................................10
2.1. Commitments to Lend ..................................10
2.2. Notice of Borrowings .................................11
2.3. Notice to Banks; Funding of Loans ....................12
2.4. Loan Accounts; Notes; Records ........................13
2.5. Optional Termination or Reduction of Commitments .....13
2.6. Extension of Termination Date ........................14
2.7. Optional Prepayments .................................15
2.8. Mandatory Payments ...................................16
2.9. Interest Rates .......................................16
2.10. Fees ................................................17
2.11. General Provisions as to Payments ...................17
2.12. Computation of Interest and Fees ....................18
2.13. Withholding Tax Exemption ...........................18
2.14. Source of Repayment .................................19
2.15. Capital Adequacy ....................................20
2.16. Substitution of Banks ...............................20
2.17. Survival ............................................20
ARTICLE III CONDITIONS ................................................21
3.1. Effectiveness ........................................21
3.2. All Borrowings .......................................22
ARTICLE IV REPRESENTATIONS AND WARRANTIES ............................22
4.1. Existence ............................................23
4.2. Authorization ........................................23
4.3. No Conflicts .........................................23
4.4. Validity and Binding Effect ..........................23
4.5. No Default ...........................................24
4.6. Financial Statements .................................24
4.7. Litigation ...........................................24
4.8. Liens ................................................24
4.9. Purpose ..............................................24
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4.10. Compliance and Government Approvals .................24
4.11. Subsidiaries; Investments ...........................25
4.12. Investment Policies .................................25
4.13. Status of Loans .....................................25
4.14. ERISA ...............................................25
4.15. Taxes ...............................................25
4.16. Asset Coverage ......................................25
4.17. Full Disclosure .....................................26
ARTICLE V COVENANTS .................................................26
5.1. Information ..........................................26
5.2. Existence ............................................27
5.3. Nature of Business ...................................27
5.4. Books, Records and Access ............................27
5.5. Insurance ............................................28
5.6. Asset Coverage Ratio .................................28
5.7. Changes to Organization Documents, etc ...............28
5.8. Service Providers ....................................28
5.9. Payment of Obligations ...............................28
5.10. Compliance with Laws ................................28
5.11. Debt ................................................29
5.12. Negative Pledge. ....................................29
5.13. Consolidations, Mergers and Sales of Assets .........30
5.14. Use of Proceeds .....................................30
5.15. Compliance with Prospectus ..........................30
5.16. Tax Status ..........................................30
5.17. No Subsidiary .......................................30
5.18. ERISA ...............................................30
5.19. Distributions .......................................30
5.20. Custodian ...........................................31
5.21. Acquisitions ........................................31
ARTICLE VI EVENTS OF DEFAULTS ........................................31
6.1. Events of Default ....................................31
6.2. Remedies .............................................33
6.3. Notice of Default ....................................33
ARTICLE VII THE ADMINISTRATIVE AGENT .....................................33
7.1. Appointment and Authorization ........................33
7.2. Action by the Administrative Agent ...................33
7.3. Consultation with Experts ............................33
7.4. Liability of the Administrative Agent ................34
7.5. Indemnification ......................................34
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7.6. Credit Decision ......................................34
7.7. Successor Administrative Agents ......................34
7.8. Administrative Agent as a Bank .......................35
7.9. Distribution by the Administrative Agent .............35
7.10. Delinquent Banks ....................................35
7.11. Syndication Agent; Co-Documentation Agents ..........36
ARTICLE VIII MISCELLANEOUS .............................................36
8.1. Notices ..............................................36
8.2. No Waivers ...........................................36
8.3. Expenses; Documentary Taxes; Indemnification .........37
8.4. Set Off ..............................................38
8.5. Amendments and Waivers ...............................38
8.6. Successors and Assigns ...............................39
8.7. Additional Borrowers .................................40
8.8. Governing Law; Submission to Jurisdiction ............40
8.9. Counterparts; Integration ............................41
8.10. WAIVER OF JURY TRIAL ................................41
8.11. Confidentiality .....................................41
8.12. Representations and Warranties of the Banks .........42
Exhibit A - Form of Allocation Notice
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Conversion/Paydown
Exhibit D - Form of Note
Exhibit E - Form of Opinion of Brown & Wood LLP
Exhibit F - Form of Compliance Certificate
Exhibit G - Form of Assignment and Acceptance
Exhibit H - Form of Joinder
Schedule 1 - Addresses for Notices and Commitment Amounts
Schedule 4.9 - Borrowers With Less Than 25% of Assets in Margin Stock
Schedule 5.20 -List of Custodians
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December
1, 2000, is made by and among each of the investment companies, and to
the extent any Borrower is a series of a Trust or a Maryland
corporation, each Trust or Maryland corporation on behalf of such
Borrowers, as are or may become party hereto listed on the signature
pages hereto or hereafter added hereto, the various banks as are or
may become party hereto (collectively, the "Banks"), The Bank of New
York, as syndication agent, State Street Bank and Trust Company, as
co-documentation agent, National Australia Bank Limited, as
co-documentation agent and BANK ONE, NA, as administrative agent for
the Banks.
W I T N E S S E T H:
WHEREAS, certain of the Borrowers, and certain of the Banks are
parties to a Credit Agreement dated as of December 3, 1999, among the
Borrowers party thereto, the Banks party thereto, The Bank of New
York, as syndication agent, National Australia Bank Limited, as
co-documentation agent, Bank One, NA, as co-documentation agent, State
Street Bank and Trust Company, as Operations Agent, and Bank of
America, National Association, as administrative agent (the "Existing
Credit Agreement"); and
WHEREAS, the parties thereto have agreed to amend and restate the
Existing Credit Agreement as provided for herein.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the Existing Credit
Agreement shall be amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. The following terms, as used herein, have the
following meanings:
"Act" means the Investment Company Act of 1940, as amended.
"Additional Commitment" has the meaning set forth in Section
2.6(b).
"Additional Commitment Bank" has the meaning set forth in Section
2.6(b).
"Administrative Agent" means Bank One acting as Administrative
Agent for the Banks and any successor thereof.
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"Adviser" means Merrill Lynch Investment Managers, L.P. or one of
its Affiliates, as investment adviser, sub-adviser or administrator to
a Borrower.
"Adviser Persons" is defined in Section 1.4.
"Affiliate" has the meaning ascribed to the term "Affiliated
Person" in the Act and the rules and regulations thereunder.
"Allocation Notice" means a notice, substantially in the form of
Exhibit A, furnished to the Administrative Agent by or on behalf of
each Borrower setting forth, as of the date of such notice, the manner
of allocation of liability for amounts that shall become due and
payable by the Borrowers under this Agreement other than principal and
interest in respect of Loans. The allocation of liability among the
Borrowers as set forth in an Allocation Notice shall be effective from
the date of receipt thereof by the Administrative Agent until a later
dated Allocation Notice is delivered to the Administrative Agent.
"Alternate Base Rate" means, for any day, a rate of interest per
annum equal to the higher of (i) the Prime Rate for such day and (ii)
the sum of the Federal Funds Effective Rate for such day plus 1/2% per
annum.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors, as sole lead arranger and sole book
manager.
"Asset Coverage Ratio" means, with respect to any Borrower, the
ratio which the Net Asset Value of such Borrower, less the value of
assets subject to Liens, bears to the aggregate amount of Debt of such
Borrower.
"Assignee" has the meaning set forth in Section 8.6.
"Assignment and Acceptance" has the meaning set forth in Section
8.6.
"Authorized Signatory" means the president, the executive vice
president, any senior vice president, any vice president, the
treasurer, the secretary or any other duly authorized officer of a
Borrower or any duly authorized employee of Merrill Lynch Investment
Managers, L.P. or any of its affiliated investment advisers designated
by such Borrower as its agent, provided that the Administrative Agent
shall have received a manually signed certificate of the Secretary of
such Borrower as to the incumbency of, and bearing a manual specimen
signature of, such duly authorized officer or agent and such duly
authorized officer or agent shall be reasonably satisfactory to the
Administrative Agent.
"Bank" is defined in the preamble.
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"Bank One" means Bank One, NA, a national banking association
having its principal office in Chicago, Illinois.
"Base Rate Loan" means a Loan bearing an interest rate per annum
equal to the Alternate Base Rate.
"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 each Person that is a signatory hereto as a
Borrower and each series or class of shares of a Trust or a Maryland
corporation which constitutes a "series" under the Act, which is a
signatory to this Agreement or which becomes a signatory to this
Agreement as a Borrower following the approval of all the Banks.
"Borrowing" means a borrowing hereunder, consisting of Loans of
the same type made to a Borrower on the same day by the Banks under
Article II.
"Borrowing Date" means the Business Day on which Loans are
advanced hereunder as specified in a Notice of Borrowing delivered
pursuant to Section 2.2(a) hereof.
"Business Day" means any day which is not (a) a Saturday or
Sunday, (b) a day on which commercial banks are authorized or required
to be closed in Chicago, Illinois or New York City, New York or (c) a
day on which the New York Stock Exchange, Inc. is authorized or
required to be closed.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Code" means the Internal Revenue Code of 1986, as amended, or
any successor statute. "Commitment" means the agreement of each Bank,
subject to the terms and conditions of this Agreement, to make Loans
to the Borrowers hereunder.
"Commitment Amount" means, with respect to each Bank, the amount
set forth opposite the name of such Bank on Schedule 1 attached
hereto, as such amount may be reduced from time to time pursuant to
Sections 2.5 or reduced or increased from time to time pursuant to
Section 8.6; and "Commitment Amounts" means, as of any date, the
aggregate of all such amounts on such date. On the Effective Date the
aggregate Commitment Amounts equal $1,000,000,000.
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"Committed Loans" means loans made pursuant to Section 2.1(a).
"Commitment Percentage" means, with respect to each Bank, the
percentage set forth opposite the name of such Bank on Schedule 1
attached hereto as such Bank's percentage of the aggregate Commitment
Amounts of all of the Banks.
"Compliance Certificate" means a certificate in substantially the
form of Exhibit F.
"Consent Date" has the meaning set forth in Section 2.6(a).
"Custodian" means, on any date, the entity which acts as a
Borrower's custodian for purposes of Section 17(f) of the 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 GAAP, (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 other similar obligations, (g) all
obligations of such Person in respect of banker's acceptances and
under reverse repurchase agreements, and (h) all obligations of such
Person in respect of senior securities for purposes of the Act.
"Default" means with respect to a Borrower 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 by such Borrower.
"Delinquent Bank" has the meaning set forth in Section 7.10(a).
"Distribution" means the declaration or payment of any dividend
on or in respect of any shares of any class of capital stock or other
ownership interests of a Borrower, other than dividends payable solely
in shares of common stock or other ownership interests of a Borrower;
the purchase, redemption, or other retirement of any shares of any
class of capital stock of a Borrower, directly or indirectly; the
return of capital by a Borrower to its shareholders as such; or any
other distribution on or in respect of any shares of any class of
capital stock or other ownership interests of a Borrower.
"Effective Date" means the date that the amendment and
restatement of the Existing Credit Agreement becomes effective in
accordance with Section 3.1.
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" means a 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 Code.
"Event of Default" has the meaning set forth in Section 6.1.
"Existing Credit Agreement" has the meaning set forth in the
recitals.
"Existing Termination Date" has the meaning set forth in Section
2.6(a).
"Failure" has the meaning set forth in Section 7.10(b).
"Federal Funds Effective 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 at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected
by the Administrative Agent in its sole discretion.
"Federal Funds Rate Loan" means a Loan bearing an interest rate
per annum equal to the Federal Funds Effective Rate plus 1/2%.
"FRB" means the Board of Governors of the Federal Reserve System
and any Governmental Authority succeeding to any of its principal
functions.
"GAAP" means United States generally accepted accounting
principles.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"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,
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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.
"Indemnified Liabilities" has the meaning set forth in Section
8.3(b).
"Indemnified Parties" has the meaning set forth in Section
8.3(b).
"Insolvency Proceeding" means, with respect to any Person, (a)
any case, action or proceeding before any court or other Governmental
Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of
debtors or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditor, or other similar
arrangement in respect of its creditors generally or any substantial
portion of its creditors, undertaken under U.S. Federal, state or
foreign law, including the Bankruptcy Code.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such asset.
"Loan Documents" means, collectively, this Agreement, the Notes,
if any, issued pursuant to Section 2.4, 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.
"Loans" means an extension of credit made or to be made to a
Borrower by the Banks pursuant to Article II and may be a Base Rate
Loan or a Federal Funds Rate Loan (each a "type" of Loan). Loans shall
include both Committed Loans and Swing Line Advances.
"Maryland corporation" means each investment company listed as
such on the signature pages hereof.
"Material Adverse Effect" means any change that is material and
adverse to (x) the condition (financial or otherwise) or business of a
Borrower, or (y) the ability of a Borrower to duly and punctually pay
and perform all or any of its Obligations.
"Maximum Amount" has the meaning set forth in Section 2.1(a).
"Moody's" means Moody's Investors Services, Inc., or any
successor acceptable to the Required Banks performing substantially
the same function.
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"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 Asset Value" means, at any date, with respect to any
Borrower, Total Assets less Total Liabilities (other than the Loans of
such Borrower and any accrued interest thereon) of such Borrower.
"Non-Extending Bank" has the meaning set forth in Section 2.6(a).
"Note" means any one of such promissory notes issued pursuant to
Section 2.4.
"Notes" means promissory notes of the Borrowers issued pursuant
to Section 2.4.
"Notice of Borrowing" has the meaning set forth in Section
2.2(a).
"Notice of Conversion" has the meaning set forth in Section
2.2(b).
"Obligations" means all indebtedness, obligations and liabilities
of a Borrower to any of the Banks and the Administrative Agent,
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, in each case arising or incurred under this
Agreement or any of the other Loan Documents or in respect of any of
the Loans to a Borrower hereunder or any of the Notes or other
instruments at any time evidencing any thereof.
"Organization Documents" means, for any Borrower that is a Trust
or a series of a Trust, the Trust Agreement, the bylaws, any
certificate of determination or instrument relating to the rights of
preferred shareholders of such Trust, and for any Borrower that is a
Maryland corporation or a series of a Maryland corporation, the
articles of incorporation and bylaws of such Maryland corporation.
"Participant" has the meaning set forth in Section 8.6(b).
"Person" means an individual, a corporation (or series thereof),
limited liability company, 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 Code and either (i) is maintained, or contributed to, by any
member of the ERISA Group for employees of any member of the ERISA
Group or (ii) has at any time within the preceding five years been
maintained, or contributed to, by any
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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.
"Prime Rate" means a rate per annum equal to the prime rate of
interest announced from time to time by Bank One or its parent (which
is not necessarily the lowest rate charged to any customer), changing
when and as said prime rate changes.
"Prospectus" means with respect to a Borrower, the current
prospectus of such Borrower delivered to the Administrative Agent
prior to the date hereof and any subsequent prospectus of such
Borrower (or Part A of such Borrower's registration statement)
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Required Banks" means at any time Banks (other than Delinquent
Banks) whose Commitment Amounts equal more than 50% of the result of
(i) the aggregate Commitment Amounts of all Banks minus (ii) the
aggregate Commitment Amounts of all Delinquent Banks at such time; and
if the Commitments of the Banks are terminated, Banks (other than
Delinquent Banks) whose outstanding Loans equal more than 50% of the
result of (i) the aggregate principal amount of all Loans outstanding
at such time minus (ii) the aggregate principal amount of all Loans
outstanding at such time from the Delinquent Banks; provided, however,
that if any one Bank (other than a Delinquent Bank) holds 50% or more
of the aggregate Commitment Amounts of all Banks (other than
Delinquent Banks), Required Banks means such Bank plus at least one
other Bank (other than a Delinquent Bank), unless there is no such
other Bank.
"Revolving Credit Period" means the period from and including the
Effective Date to but excluding the Termination Date.
"SAI" means, with respect to a Borrower (if applicable), the
current statement of additional information of such Borrower (or Part
B of such Borrower's registration statement) and any subsequent
statement of additional information of such Borrower.
"S&P" means Standard & Poors Ratings Group, or any successor
acceptable to the Required Banks performing substantially the same
function.
"Section 2.13(a) Tax" has the meaning set forth in Section
2.13(a).
"Subsidiary" of the 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 the Borrower.
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"Swing Line Advance" has the meaning specified in Section 2.1(b).
"Swing Line Lender" means each of Bank One, State Street Bank and
Trust Company and The Bank of New York.
"Swing Line Lenders" means Bank One, State Street Bank and Trust
Company and The Bank of New York, collectively.
"Termination Date" means November 30, 2001, provided that the
Termination Date (and each Bank's Commitment to make Loans hereunder)
may be extended in accordance with Section 2.6 hereof.
"Total Assets" means, with respect to a Borrower as of any date,
the aggregate amount of all items that would be set forth as assets on
a balance sheet of such Borrower on such date prepared in accordance
with GAAP. The assets of a Borrower shall be valued in accordance with
the Act, the rules and regulations under the Act, and the valuation
procedures set forth in its most recent Prospectus and SAI (if
applicable).
"Total Liabilities" means, with respect to a Borrower as of any
date, the aggregate amount of all items that would be set forth as
liabilities on a balance sheet of such Borrower on such date prepared
in accordance with GAAP.
"Trust" means each investment company listed as such on the
signature pages hereof.
"Trust Agreement" means, with respect to a Trust, such Trust's
trust agreement and declaration of trust or similar instruments, as
amended from time to time.
"type" has the meaning specified in the definition of Loan.
1.2. 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 GAAP as in effect from time to time in the
United States of America, applied on a basis consistent (except for
changes concurred in by a Borrower's independent public accountants)
with the most recent audited financial statements of the Borrower
delivered to the Banks hereunder.
1.3. Assumptions Regarding Structure. The parties acknowledge and
agree that with respect to certain Trusts and Maryland corporations,
such Trusts and Maryland corporations are comprised of one or more
separate Borrowers and that such Borrowers are not separately existing
legal entities entitled to enter into contractual agreements or to
execute instruments, and for these reasons, the relevant Trusts or
Maryland corporations are executing this Agreement on behalf of their
specified respective Borrowers.
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1.4. Authority of Adviser; Adviser Disclaimer. Each of the
Borrowers hereby confirms that the Adviser and the employees of the
Adviser designated by such Borrower as its agents have been duly
authorized to act on behalf of such Borrower for purposes of this
Agreement and to take all actions which such Borrower is entitled or
required to take hereunder or thereunder, including, without
limitation, requesting the making or conversion of Loans on behalf of
a Borrower pursuant to Section 2, reducing or terminating the
Commitments as to one or more Borrowers, and executing and delivering
any and all certificates, reports, financial information and notices
required to be delivered to the Administrative Agent hereunder.
Notwithstanding the foregoing or anything to the contrary contained in
this Agreement, the parties hereto acknowledge and agree that (a) in
taking any such action hereunder, the Adviser is acting solely in its
capacity as investment adviser for a Borrower and not in its
individual capacity, (b) neither the Adviser nor any of its officers,
employees or agents (with the Adviser, collectively, "Adviser
Persons") shall have any liability whatsoever for any action taken or
omitted to be taken by any of them in connection with this Agreement
nor shall any of them be bound by or liable for any indebtedness,
liability or obligation hereunder and (c) neither the Adviser nor any
Adviser Person shall be responsible in any manner to the
Administrative Agent or the Banks for the truth, completeness or
accuracy of any statement, representation, warranty or certification
contained in this Agreement, any other Loan Document or in any
information, report, certificate or other document furnished by the
Adviser on behalf of any Trust, Maryland corporation or Borrower in
connection with this Agreement.
ARTICLE II
THE CREDIT
2.1. Commitments to Lend. (a) Subject to the terms and conditions
set forth in this Agreement, each of the Banks severally agrees to
make loans to the Borrowers, and the Borrowers may borrow, repay and
reborrow from time to time during the Revolving Credit Period, upon
notice by a Borrower to the Administrative Agent given in accordance
with Section 2.2(a) hereof, such sums as are requested by the
Borrowers up to a maximum aggregate amount outstanding (after giving
effect to all amounts requested) at any one time equal to such Bank's
Commitment Amount, provided that the aggregate principal amount of all
Loans outstanding (after giving effect to all amounts requested) shall
not exceed at any time the aggregate Commitment Amounts of all of the
Banks and 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 (the "Maximum Amount") such
Borrower is permitted to borrow at such time under applicable laws and
regulations, the limitations on borrowing adopted by such Borrower in
its Prospectus and/or SAI (if applicable) or elsewhere, and any
agreements with federal, state, local or foreign governmental
authorities or regulators, in each case as in effect from time to
time. Each Borrowing under this Section shall be in an aggregate
principal
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amount of not less than $500,000 and shall be made from the several
Banks pro rata in accordance with each Bank's Commitment Percentage.
(b) Notwithstanding the provisions of clause (a) of this Section
2.1, and subject to the terms and conditions of this Agreement, each
Swing Line Lender agrees to make $100,000,000 of its Commitment Amount
available by making Loans (each, a "Swing Line Advance", and,
collectively, the "Swing Line Advances") to any Borrower and each
Borrower may borrow, repay and reborrow such Swing Line Advances, from
time to time during the Revolving Credit Period, upon notice by any
Borrower to the Administrative Agent in accordance with Section
2.2(c), in an aggregate principal amount at any time outstanding not
to exceed $300,000,000 (after giving effect to all Swing Line Advances
requested); provided that the aggregate amount of all Loans
outstanding from each Swing Line Lender (after giving effect to all
Swing Line Advances requested) shall not exceed the respective Swing
Line Lender's Commitment Amount. All Swing Line Advances shall be made
by the Swing Line Lenders on a pro rata basis. Swing Line Advances may
be Federal Funds Rate Loans or Base Rate Loans. Each Borrower promises
to pay each Swing Line Advance made to such Borrower, together with
any and all accrued and unpaid interest thereon, on the earlier of (A)
ten (10) days after the date such Swing Line Advance was made, (B) the
date of the next Loan made to such Borrower by the Banks pursuant to
clause (a) of this Section, and (C) the Termination Date. If (x) any
Swing Line Advance remains outstanding to any Borrower more than (10)
days from the date of the advance thereof, (y) Loans are not requested
pursuant to clause (a) of this Section by such Borrower prior to the
Termination Date, or (z) the Administrative Agent so requests at any
time in its sole and absolute discretion, then each Bank (including
each of the Swing Line Lenders in its respective capacity as a Bank)
shall fund its pro rata share (based upon such Bank's Commitment
Percentage) of the principal amount of such Swing Line Advance with a
Committed Loan, which Committed Loan shall initially be a Base Rate
Loan. Each Bank's obligation to make such payments to the
Administrative Agent for account of the Swing Line Lenders under this
paragraph (b), and the Swing Line Lenders' rights to receive the same,
shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the failure of
any other Bank to make its payment under this paragraph (b), the
financial condition of any Borrower, the existence of any Default or
Event of Default, the failure of any of the conditions set forth in
Article III to be satisfied, or the termination of the Commitments.
Each such payment to the Swing Line Lenders shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Bank
agrees to fund its pro rata share of such outstanding Swing Line
Advances on (i) the Business Day on which demand therefore is made by
the Swing Line Lenders as aforesaid, provided that notice of such
demand is given not later than 1:00 P.M. (Chicago time) on such
Business Day or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. If and to
the extent that any Bank shall not have so made the amount of such
Swing Line Advance available to the Administrative Agent, such Bank
agrees to pay to the Administrative Agent for the account of the Swing
Line Lenders forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Swing Line
Lenders until the date such amount is paid to the Administrative
Agent, as the Federal Funds Rate.
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2.2. Notice of Borrowings. (a) Each Borrowing shall be made upon
the borrowing Borrower's irrevocable written notice substantially in
the form of Exhibit B attached hereto (a "Notice of Borrowing") not
later than 11:00 a.m. (Chicago time) (or telephonic notice not later
than 11:00 a.m. (Chicago time) confirmed in a writing substantially in
the form of Exhibit B attached hereto not later than 11:30 a.m.
(Chicago time)) on the Business Day of the proposed Borrowing,
appropriately completed concerning the Borrowing. Each Notice of
Borrowing or oral request shall constitute a representation and
warranty by the borrowing Borrower that the conditions set forth in
Section 3.2 have been satisfied on the date of such notice and will be
satisfied on the Borrowing Date.
(b) Each Borrower may elect from time to time to convert any
outstanding Base Rate Loan or Federal Funds Rate Loan to a Loan of the
other type, by giving a notice on the date of the conversion to the
Administrative Agent substantially in the form of Exhibit C attached
hereto (a "Notice of Conversion") not later than 10:00 a.m. (Chicago
time) (or telephonic notice by 10:00 a.m. (Chicago time) confirmed in
a writing substantially in the form of Exhibit C attached hereto not
later than 10:30 a.m. (Chicago time)).
(c) Notwithstanding the foregoing, any Borrower may request a
Swing Line Advance under this Section 2.1 (c) by delivering to the
Administrative Agent, no later than 2:00 p.m. (Chicago time) on the
date of the proposed Swing Line Advance, a Notice of Borrowing, which
shall be made by facsimile transmission. The Administrative Agent will
promptly advise the Swing Line Lenders of any such notice received
from any such Borrower.
(d) Each Swing Line Lender will make a pro rata amount (equal to
the total Swing Line Advance amount requested, divided by three) of
such Swing Line Advance available to the Borrower requesting such
Swing Line Advance at the account noticed by such Borrower to the
Administrative Agent.
2.3. Notice to Banks; Funding of Loans. (a) Upon receipt of a
Notice of Borrowing or an oral request for a Borrowing in accordance
with Section 2.2, the Administrative Agent shall promptly notify each
Bank of the contents thereof and of such Bank's ratable share, if any,
of such Borrowing. Such Notice of Borrowing or oral request shall not
thereafter be revocable by the borrowing Borrower and shall obligate
the borrowing Borrower to accept the Loans requested from the Banks on
the Borrowing Date.
(b) Not later than 3:00 p.m. (Chicago time) on the Borrowing Date
of each Borrowing, each Bank shall make available its share, if any,
of such Borrowing, in Federal or other funds immediately available in
Chicago, to the Administrative Agent at its address referred to in
Section 8.1. Unless the Administrative Agent determines that any
applicable condition specified in Article III has not been satisfied,
the Administrative Agent will make its share of such Borrowing and the
funds so received from the other Banks available to the borrowing
Borrower as noticed to the Administrative Agent with the name of its
custodian and payment instructions (including ABA number and demand
deposit account number) on the Borrowing
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Date. The failure or refusal of any Bank to make available to the
Administrative Agent as provided herein its share of any Borrowing
shall not relieve any other Bank from its several obligations
hereunder.
(c) If any Committed Loan is to be made to a Borrower hereunder
on a day on which any Swing Line Advance to such Borrower is
outstanding, the proceeds of such Committed Loan shall be applied
first to the repayment of the outstanding Swing Line Advances to such
Borrower, and only an amount equal to the difference (if any) between
the amount being borrowed and the Swing Line Advances being repaid
shall be made available to such Borrower by the Administrative Agent
as provided in clause (b) of this Section 2.3.
(d) Unless the Administrative Agent shall have received notice
from a Bank prior to any Borrowing Date that such Bank will not make
available to the Administrative Agent such Bank's share of such
Borrowing, the Administrative Agent may assume that such Bank has made
such share available to the Administrative Agent on such Borrowing
Date in accordance with subsection (b) of this Section and the
Administrative Agent may (but it shall not be required to), in
reliance upon such assumption, make available to the borrowing
Borrower on such date a corresponding amount. If and to the extent
that such Bank shall not have so made such share available to the
Administrative Agent, such Bank and the borrowing Borrower severally
agree to repay to the Administrative Agent, within three days after
demand by the Administrative Agent, such amount together with interest
thereon, for each day from the date such amount is made available to
the borrowing Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the borrowing Borrower, a
rate per annum equal to the interest rate applicable thereto pursuant
to Section 2.9 and (ii) in the case of such Bank, the Federal Funds
Effective Rate. If such Bank shall repay to the Administrative Agent
such amount, such amount so repaid shall constitute such Bank's Loan
included in such Borrowing for purposes of this Agreement.
2.4. Loan Accounts; Notes; Records. (a) The Loans made by each
Bank to each Borrower shall be evidenced by one or more loan accounts
or records maintained by such Bank in the ordinary course of business.
The loan accounts or records maintained by the Administrative Agent
and each Bank shall be prima facie evidence of the amount of the Loans
made by the Banks to each Borrower and the interest and payments
thereon. Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of any Borrower
hereunder to pay any amount owing with respect to the Loans made to it
hereunder. ( b) The Borrowers hereby agree that if, in the opinion of
any Bank, a promissory note or other evidence of debt is required to
reflect or enforce the Debt of the Borrowers resulting from the Loans
made, or to be made, by such Bank, then upon request of such Bank, the
Borrowers shall promptly execute and deliver to such Bank, for the
Loans made or to be made by such Bank, a promissory note substantially
in the form of Exhibit D attached hereto, payable to the order of such
Bank in an amount equal to the Loans payable or to be payable to such
Bank from time to time, provided, that as a condition to issuing any
such Note, the Borrowers may
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require an indemnity with respect to lost instruments from such
Bank, in form and substance satisfactory to the Borrowers and their counsel.
2.5. Optional Termination or Reduction of Commitments. (a) The
Borrowers shall have the right at any time and from time to time prior
to the Termination Date upon three Business Days' prior written notice
to the Administrative Agent to reduce by $50,000,000 or a larger
integral multiple of $10,000,000 the unborrowed portion of the
aggregate Commitment Amounts of the Banks or terminate entirely each
Bank's Commitment, whereupon the Commitment Amounts of each of the
Banks shall be reduced pro rata in accordance with their Commitment
Percentages of the amount specified in such notice or, as the case may
be, each Bank's Commitment shall be terminated. Promptly after
receiving any notice of the Borrowers delivered pursuant to this
Section, the Administrative Agent will notify the Banks of the
substance thereof. Upon the effective date of any such reduction or
termination, the Borrower shall pay to the Administrative Agent for
the respective accounts of the Banks the full amount of any commitment
fee then accrued on the amount of the reduction. No reduction in the
Commitment Amounts or termination of the Commitments may be
reinstated.
(b) Any Borrower may on three Business Days' (or such shorter
period as the Administrative Agent shall agree) written notice to the
Administrative Agent cease to be a Borrower hereunder on the date
specified in such notice, provided all Obligations due and owing by
such Borrower hereunder are repaid in full on such date. A Borrower
ceasing to be a Borrower hereunder shall not affect the then
applicable Commitment Amounts, which shall remain unchanged.
2.6. Extension of Termination Date. (a) The Borrowers may, by
notice to the Administrative Agent (which shall promptly deliver a
copy to the Administrative Agent and each of the Banks) not less than
45 days and not more than 60 days prior to the Termination Date then
in effect hereunder (the "Existing Termination Date"), request that
the Banks extend the Termination Date for an additional 364 days from
the Consent Date (as defined below). Each Bank, acting in its sole
discretion, shall, by notice to the Borrowers and the Administrative
Agent (who shall notify the Administrative Agent) given on the date
(and, subject to the provision below, only on the date) 30 days prior
to the Existing Termination Date (provided, if such date is not a
Business Day, then such notice shall be given on the next succeeding
Business Day) (the "Consent Date"), advise the Borrowers whether or
not such Bank agrees to such extension; provided that each Bank that
determines not to extend the Termination Date (a "Non-Extending Bank")
shall notify the Administrative Agent (who shall notify the
Administrative Agent and the Borrowers) of such fact promptly after
such determination (but in any event no later than the Consent Date)
and any Bank that does not advise the Borrowers on or before the
Consent Date shall be deemed to be a Non-Extending Bank. The election
of any Bank to agree to such extension shall not obligate any other
Bank to agree to such extension.
(b) The Borrowers shall have the right on or before the Existing
Termination Date to replace each Non-Extending Bank with, and
otherwise add to this Agreement, one or more other
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commercial banks, which may include any Bank (each, prior to the
Existing Termination Date, an "Additional Commitment Bank") with the
approval of the Administrative Agent (which approval shall not be
unreasonably delayed or withheld). Each Additional Commitment Bank
shall enter into an Assignment and Acceptance pursuant to which such
Additional Commitment Bank shall, effective as of the Existing
Termination Date, undertake a Commitment (an "Additional Commitment")
(if any such Additional Commitment Bank is a Bank, its Additional
Commitment shall be in addition to such Bank's Commitment hereunder on
such date).
(c) If (and only if) Banks with Commitment Amounts that, in the
aggregate, together with the proposed Commitment Amounts of the
Additional Commitment Banks that will become effective on the Existing
Termination Date, aggregate at least 75% of the aggregate Commitment
Amounts on the Consent Date shall have agreed to extend the Existing
Termination Date, then, effective as of the Existing Termination Date,
(i) the Existing Termination Date shall be extended to the date which
is 364 days after the Consent Date (provided, if such date is not a
Business Day, then such Termination Date as so extended shall be the
next preceding Business Day), (ii) the aggregate Commitment Amounts
shall equal the sum of the Commitments of the Banks (other than the
non-extending Banks) and the Additional Commitment Banks and each
(iii) Additional Commitment Bank shall thereupon become a "Bank" with
a Commitment for all purposes of this Agreement.
(d) Notwithstanding the foregoing, the extension of the Existing
Termination Date shall not be effective with respect to any Bank
unless:
(i) no Default or Event of Default shall have occurred and
be continuing on the date of the notice requesting such
extension, the Consent Date or the Existing Termination Date;
(ii) each of the representations and warranties of the
Borrowers in Article IV hereof shall be true and correct on and
as of each of the date of the notice requesting such extension,
the Consent Date and the Existing Termination Date with the same
force and effect as if made on and as of each such date (or, if
any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date); and
(iii) each Non-Extending Bank shall have been paid in full
by the respective Borrowers all amounts owing to such Bank
hereunder on or before the Existing Termination Date. Even if the
Existing Termination Date is extended as provided in this Section
2.6, the Commitment of each Non-Extending Bank shall terminate on
the Existing Termination Date.
2.7. Optional Prepayments. (a) Each Borrower may, with telephonic
notice to the Administrative Agent by 12:00 P.M. (Chicago time)
confirmed in writing substantially in the form of Exhibit C attached
hereto no later than 12:30 p.m. (Chicago time) on the Business Day of
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<PAGE>
such payment (which notice shall not thereafter be revocable by such
Borrower), prepay any Loans made to such Borrower in whole at any
time, or from time to time in part in an aggregate principal amount
not less than $500,000 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. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several
Banks included in such Borrowing made to such Borrower.
(b) Upon receipt of a notice of prepayment pursuant to subsection
(a), the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share of such prepayment.
(c) Subject to the satisfaction of the conditions set forth in
Section 3.2, Loans prepaid prior to the Termination Date may be
reborrowed prior to the Termination Date.
2.8. Mandatory Payments. (a) If at any time the Asset Coverage
Ratio for any Borrower shall be less than 3 to 1, such Borrower shall,
within three (3) Business Days, prepay such principal amount of one or
more Loans made to such Borrower, as may be necessary so that after
such prepayment the Asset Coverage Ratio for such Borrower shall not
exceed 3 to 1.
(b) On any date on which the Loans outstanding exceed the
aggregate Commitment Amounts, the Borrowers, which have Loans
outstanding at such date, shall immediately severally prepay such
principal amount of the one or more Loans made to such Borrowers
(together with accrued interest thereon) based upon each such
Borrower's pro rata share of such amount in excess of the aggregate
Commitment Amounts, as may be necessary to eliminate such excess.
(c) On any date on which the Loans outstanding of any Borrower
exceed the Maximum Amount for such Borrower, such Borrower shall
immediately prepay such principal amount of one or more Loans, as may
be necessary to eliminate such excess.
(d) Each Swing Line Advance shall mature, and the principal
amount thereof shall be due and payable, as provided in Section
2.1(b).
(e) Each Loan (other than a Swing Line Advance) shall mature, and
the principal amount thereof shall be due and payable, on the earlier
of (i) the date that is 60 days after the date of the making of such
Loan or any Swing Line Advance refinanced with such Loan and (ii) the
Termination Date. No proceeds of any Loan shall be used to refinance
any Loan (other than a Swing Line Advance).
(f) On the Termination Date, each Bank's Commitment Amount
permanently shall reduce to $0 and each Bank's Commitment shall
terminate. Each Borrower severally 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 it on such date,
together with all accrued and unpaid interest thereon and all other
amounts outstanding hereunder owing by it on such date.
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2.9. Interest Rates. (a) Subject to Sections 2.9(c) and (d), each
Federal Funds Rate Loan shall bear interest on the outstanding
principal amount thereof, for the period commencing with the date such
Federal Funds Rate Loan is made up to but not including the date such
Federal Funds Rate Loan is repaid in full, at a rate per annum equal
to the Federal Funds Effective Rate as in effect from time to time
plus 0.50%. Interest on each Federal Funds Rate Loan shall be payable
on the last day of each calendar quarter commencing on the first such
day after the Effective Date and on the Termination Date. The
Administrative Agent shall on each Business Day for which a Federal
Funds Rate Loan is outstanding notify the borrowing Borrower and the
Banks in writing (by telecopy) of the Federal Funds Effective Rate in
effect on such day.
(b) Subject to Section 2.9(c), each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for the period
commencing with the date such Base Rate Loan is made at a rate per
annum equal to the Alternate Base Rate. Interest on each Base Rate
Loan shall be payable on the last day of each calendar quarter
commencing March 31, 2001 and on the Termination Date.
(c) 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) to but not including the date
of actual payment, at a rate per annum equal to the sum of two percent
(2%) above the Alternate Base Rate until such amount shall be paid in
full (after as well as before judgment).
2.10. Fees. (a) Subject to the allocation requirements of Section
2.14, during the Revolving Credit Period, each of the Borrowers
severally shall pay to the Administrative Agent for the account of
each Bank its pro rata share of the commitment fee at the rate of
0.09% per annum on the daily amount by which the aggregate amount of
such Bank's Commitment Amount exceeded the aggregate outstanding
principal amount of the Loans made by such Bank. For the purpose of
calculating the commitment fee, Swing Advances shall not be considered
to be outstanding Loans.
(b) The commitment fee shall accrue from and include the
Effective Date but exclude the Termination Date. Accrued commitment
fees payable hereunder shall be payable quarterly in arrears on the
15th of each April, July, October and January of each year for the
calendar quarter ending on the last day of the immediately preceding
month, commencing on the first such day after the Effective Date, and
on the Termination Date.
(c) Subject to the allocation requirements of Section 2.14, the
Borrowers severally shall pay to the Administrative Agent for its own
account, quarterly in advance, on the Effective Date and on the 15th
day of each April, July and October, its pro rata share of the
non-refundable agent's fee as agreed upon separately, by the Borrowers
and the Administrative Agent.
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2.11. 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 1:00 p.m. (Chicago time) on the
date when due, in United States dollars and in Federal or other funds
immediately available in Chicago, to the Administrative Agent at its
address referred to in Section 8.1. The Administrative Agent will
promptly distribute to each Bank its ratable share of each such
payment received by the Administrative Agent for the account of the
Banks. 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. 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) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due to the
Banks hereunder that such Borrower will not make such payment in full,
the Administrative Agent may assume that such Borrower has made such
payment in full to the Administrative Agent on such date and the
Administrative Agent may (but it shall not be required to), in
reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and
to the extent that a Borrower shall not have so made such payment,
each Bank shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Bank together with interest thereon,
for each day from the date such amount is distributed to such Bank
until the date such Bank repays such amount to the Administrative
Agent, at the Federal Funds Effective Rate.
(c) Each Borrower agrees that payments by such Borrower hereunder
and under any of the other Loan Documents shall be made without setoff
or counterclaim.
2.12. Computation of Interest and Fees. All interest based on the
Federal Funds Effective Rate and fees hereunder shall be computed on
the basis of a year of 360 days and paid for the actual number of days
elapsed and all interest based on the rate specified in clause (i) of
the definition of "Alternate Base Rate" shall be computed on the basis
of a year of 365/366 days and paid for the actual number of days
elapsed.
2.13. Withholding Tax Exemption. (a) All payments hereunder and
under any of the other Loan Documents shall be made free and clear of
and without any deduction for or on account of any tax, levy,
deduction, withholding, or other similar charge of whatever nature
(but excluding any tax on the overall net income of a Bank or its
lending office by the jurisdiction in which such Bank is incorporated
or has its principal office or such lending office) (each such
non-excluded tax, levy, deduction, withholding or similar charge, for
the purposes of this Section, a "Section 2.13(a) Tax") imposed by the
United States of America, or any political subdivision or taxing
authority thereof or therein (each, for the purposes of this Section,
an "Appropriate Taxing Authority"), except as expressly provided in
this Section. Except as otherwise provided in Section 2.13(c), if any
Section 2.13(a) Taxes are imposed and required by law to be paid or
withheld from any amount payable to any Bank, then the borrowing
Borrower upon the request of such Bank shall (i) increase the amount
of such payment so that such Bank
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will receive a net amount (after deduction of all Section 2.13(a)
Taxes) equal to the amount due hereunder, (ii) pay such Section
2.13(a) Taxes to the Appropriate Taxing Authority for the account of
such Bank in a timely manner, and (iii) as promptly as possible
thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it ((x) if
such Bank is an original Bank party to this Agreement, on or prior to
the Effective Date, and (y) if such Bank becomes a Bank party to this
Agreement after the Effective Date, on or prior to the date such Bank
becomes a Bank party hereto) will deliver to the Borrowers and the
Administrative Agent two duly completed copies of United States
Internal Revenue Service Form W8ECI, certifying in either case that
such Bank is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes.
Each Bank which so delivers a Form W8ECI further undertakes to deliver
to the Borrowers and the Administrative Agent two additional copies of
such form (or a successor form) on or before the date that such form
expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and
such amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Borrowers or the Administrative Agent, in
each case certifying that such Bank is entitled to receive payments
under this Agreement without deduction or withholding of any United
States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required
which renders all such forms inapplicable or which would prevent such
Bank from duly completing and delivering any such form with respect to
it and such Bank advises the Borrowers and the Administrative Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(c) Notwithstanding anything to the contrary contained in Section
2.13(a), the Borrowers will not be required to make any additional
payment to or for the account of any Bank under Section 2.13(a) by
reason of (i) a breach by such Bank of any certification or
representation set forth in any form furnished to the Borrowers under
Section 2.13(b) or (ii) such Bank's failure or inability to furnish
under Section 2.13(b) an original or an extension or renewal of a Form
W8ECI (or successor form), as applicable, unless such Bank is exempt
from furnishing such Form pursuant to Section 2.13(b).
2.14. Source of Repayment. (a) Notwithstanding any other
provision of this Agreement, the parties agree that the assets and
liabilities of each Borrower, are separate and distinct from the
assets and liabilities of each other Borrower, and to the extent a
Borrower is a series of a Trust or a Maryland corporation, such Trust
or Maryland corporation and each other series of that Trust or
Maryland corporation, as the case may be, and that no Borrower, and to
the extent a Borrower is a series of a Trust or a Maryland
corporation, no such Trust or Maryland corporation and no other series
of that Trust or Maryland corporation, as the case may be, shall be
liable or shall be charged for any debt, obligation, liability, fee or
expense arising under this Agreement or out of or in connection with
any transaction other than one entered into by or on
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behalf of itself. The Borrowers shall (i) as provided in Section
3.1(d), (ii) to the extent feasible, at least five Business Days in
advance of a date on which a payment in respect of a debt, obligation,
liability, fee or expense arising hereunder (other than principal of
or interest on a Loan) shall be due and payable and (iii) upon request
of the Administrative Agent or at any time at the option of the
Borrowers, cause to be provided to the Administrative Agent an
Allocation Notice; provided, however, should the Borrowers fail to
deliver to the Administrative Agent an Allocation Notice with respect
to such amounts within five Business Days following a request for the
same by the Administrative Agent, the Borrowers shall be severally
liable therefor to the Administrative Agent and/or the Banks in the
proportion set forth in the Allocation Notice most recently delivered
to the Administrative Agent.
(b) With respect to each Trust, the parties hereto acknowledge
that the Trust Agreement for each Trust is on file with the Secretary
of State of The Commonwealth of Massachusetts and the Clerk of the
City of Boston or the Secretary of State of the State of Delaware, as
applicable. With respect to each Trust, the parties hereby agree that
this Agreement is not executed on behalf of the trustees of such Trust
as individuals; that the obligations of any Borrower of such Trust
under this Agreement and any claims, obligations or liabilities
arising hereunder are not binding on any of the trustees, officers or
shareholders of such Trust individually but are binding upon only the
assets and property of such Borrower; and that no Borrower or series
of a Trust will be held liable for the obligations or liabilities of
any other Borrower or series of that Trust.
2.15. Capital Adequacy. If any Bank shall have determined that
(i) the introduction of any Capital Adequacy Regulation, (ii) any
change in any Capital Adequacy Regulation or (iii) any change in the
interpretation or administration of any Capital Adequacy Regulation by
any central bank or other Governmental Authority charged with the
interpretation or administration thereof, in each case occurring after
the date hereof, affects or would affect the amount of capital
required or expected to be maintained by the Bank or any corporation
controlling the Bank and (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy and such
Bank's desired return on capital) determines that the amount of such
capital is increased as a consequence of its Commitment, loans or
obligations under this Agreement, then, within 10 days after demand of
such Bank to the Borrowers through the Administrative Agent (which
demand shall be in writing and shall set forth in reasonable detail
the calculation of such amounts), each of the Borrowers severally
shall pay to such Bank, from time to time as specified by the Bank,
its pro rata share of additional amounts sufficient to compensate the
Bank for such increase.
2.16. Substitution of Banks. Upon the receipt by the Borrowers
from any Bank (an "Affected Bank") of a claim for compensation under
Section 2.13 or 2.15, the Borrowers may: (i) request the Affected Bank
to use its best efforts to obtain a replacement bank satisfactory to
the Borrowers to acquire and assume all or ratable part of all of such
Affected Bank's Loans and Commitment (a "Replacement Bank"); (ii)
request one more of the other Banks to acquire and assume all or any
part of such Affected Bank's Loans and Commitment; or (iii) designate
a
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Replacement Bank. Any such designation of a Replacement Bank under
clause (i) or (iii) shall be subject to the prior written consent of
the Administrative Agent (which consent shall not be unreasonably
withheld).
2.17. Survival. The agreements and obligations of the Borrowers
under Sections 2.13 and 2.15 shall survive the payment of all other
Obligations for a period of ninety days.
ARTICLE III
CONDITIONS
3.1. Effectiveness. The amendment and restatement of the Existing
Credit Agreement shall become effective on the date that each of the
following conditions shall have been satisfied (or waived in
accordance with Section 8.5):
(a) receipt by the Administrative Agent of counterparts hereof
signed by each of the parties hereto;
(b) receipt by each of the Banks of an opinion of Brown & Wood
LLP, counsel to the Borrowers, substantially in the form of Exhibit E
attached hereto and reasonably satisfactory to the Administrative
Agent in all respects;
(c) receipt by the Administrative Agent of a manually signed
certificate from the Secretary of each Borrower, in form and substance
satisfactory to the Administrative Agent and dated the Effective Date,
as to (i) the incumbency of, and bearing manual specimen signatures
of, the Authorized Signatories of such Borrower, (ii) certifying and
attaching copies of (A) such Borrower's Organization Documents as then
in effect, (B) duly authorized resolutions of such Borrower's board of
directors or trustees authorizing the transactions contemplated
hereby, (C) the Prospectus and (D) all amendments to the Borrower's
investment objectives, policies and restrictions since the date of the
Prospectus; provided that to the extent a prior certificate delivered
pursuant to the Existing Credit Agreement certifies as to any of the
foregoing, the certificates under this clause (c) may refer to such
certificate;
(d) receipt by the Administrative Agent of an Allocation Notice;
(e) receipt by the Administrative Agent 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 Governmental Authorities, the
existence of each Borrower, the authority for and the validity and
enforceability of this Agreement and the other Loan Documents, and any
other matters relevant hereto, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel; and
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(f) receipt by the Administrative Agent of payment of all fees
and expenses (including fees and disbursements of special counsel for
the Administrative Agent) then payable hereunder and under the other
Loan Documents.
The Administrative Agent shall promptly notify the Borrowers and
the Banks of the Effective Date and such notice shall be conclusive
and binding on all parties hereto.
3.2. All Borrowings. The obligation of any Bank to make a Loan to
a Borrower on the occasion of any Borrowing is subject to the
satisfaction of the following conditions by such Borrower:
(a) receipt by the Administrative Agent of a Notice of Borrowing
as required by Section 2.2, which is completed in a manner
satisfactory to the Administrative Agent in all respects,
(b) immediately after such Borrowing, the aggregate outstanding
principal amount of the Loans to the borrowing Borrower will not
exceed its Maximum Amount;
(c) immediately after such Borrowing, the aggregate principal
amount of the Loans to all Borrowers will not exceed the aggregate
Commitment Amounts;
(d) immediately before and after such Borrowing, no Default or
Event of Default shall have occurred and be continuing with respect to
the borrowing Borrower;
(e) each of the representations and warranties of the borrowing
Borrower contained in this Agreement shall be true on and as of the
date of such Borrowing (unless any such representation and warranty
shall relate solely to an earlier date, in which case such
representation and warranty shall be true and correct as of such
earlier date);
(f) receipt by the Administrative Agent with respect to the
borrowing Borrower (other than a Borrower listed on Schedule 4.9) of a
duly executed FRB Form FR U-1 for each Bank as required pursuant to
FRB Regulation U (12 C.F.R. ss. 221.1 et seq.), in form and substance
satisfactory to the Administrative Agent and its counsel, together
with all information requested by the Administrative Agent in
connection therewith, including updates of information, if any,
required by such Regulation U; and
(g) receipt by the Administrative Agent of payment instructions
from the Borrower, as required under Section 2.3(b).
Each Borrowing hereunder shall be deemed to be a representation
and warranty by the borrowing Borrower on the date of such Borrowing
as to the facts specified in clauses (b), (c), (d) and (e) of this
Section.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks and the Administrative Agent to
enter into this Agreement and to make Loans hereunder, each Borrower
and, to the extent such Borrower is a series of a Trust or a Maryland
corporation, such Trust or Maryland corporation, not in its individual
capacity, but on behalf of such Borrower severally represents and
warrants to the Administrative Agent and each Bank with respect to
itself as set forth in this Article IV. The representations and
warranties contained in this Article IV with respect to an individual
Borrower shall be deemed to be repeated by such Borrower each time
that a Loan is made to such Borrower as provided in Article III.
4.1. Existence. Such Borrower, or to the extent such Borrower is
a series of a Trust or a Maryland corporation, such Trust or Maryland
corporation, is an open-end or closed-end management investment
company within the meaning of the Act and is duly organized, validly
existing and in good standing under the laws of the state of its
organization or formation. Such Borrower, or to the extent such
Borrower is a Trust or a Maryland corporation, such Trust or Maryland
corporation, is duly qualified to do business and in good standing in
each other jurisdiction in which such qualification is required by
applicable law, except to the failure to be so qualified or in good
standing could not have a Material Adverse Effect on such Borrower. To
the extent such Borrower is a series of shares of beneficial interest
in the Trust or Maryland corporation of which it comprises a series
(which shares have been and will be duly authorized, validly issued,
fully paid and non-assessable by such Trust or Maryland corporation)
it legally constitutes a fund or portfolio permitted to be marketed to
investors pursuant to the provisions of the Act.
4.2. Authorization. Such Borrower, or to the extent such Borrower
is a series of a Trust or a Maryland corporation, such Trust or
Maryland corporation on behalf of such series, is duly authorized to
execute and deliver this Agreement and, with respect to such Trust or
Maryland corporation, so long as this Agreement shall remain in effect
with respect to it, each of its Borrowers will continue to be duly
authorized to borrow monies hereunder on its own behalf and to perform
its obligations under this Agreement. The execution, delivery and
performance by such Borrower, or to the extent such Borrower is a
series of a Trust or Maryland corporation, such Trust or Maryland
corporation on behalf of such Borrower, of this Agreement and the
Borrowings of each Borrower do not and will not require any consent or
approval of or registration with any Governmental Authority.
4.3. No Conflicts. The execution, delivery and performance by
such Borrower, or to the extent such Borrower is a series of a Trust
or Maryland corporation, the execution and delivery by such Trust or
Maryland corporation on behalf of such Borrower, of this Agreement do
not and, so long as this Agreement shall remain in effect with respect
to it, will not (i) conflict with any provision of law, (ii) conflict
with the Organization Documents of such Borrower, or
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the extent such Borrower is a Trust or a Maryland corporation such
Trust or Maryland corporation, (iii) conflict with any material
agreement binding upon it, (iv) conflict with such Borrower's most
recent Prospectus or its most recent SAI (if applicable) (v) conflict
with any court or administrative order or decree applicable to such
Borrower or (vi) require or result in the creation or imposition of
any Lien on any of such Borrower's assets.
4.4. Validity and Binding Effect. This Agreement is the legal,
valid and binding obligation of such Borrower, enforceable against it
in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, receivership, fraudulent
conveyance, fraudulent transfer, moratorium or other similar laws of
general application affecting the enforcement of creditors' rights or
by general principles of equity (regardless of whether considered in a
proceeding in equity or at law).
4.5. No Default. Such Borrower is not in default under any
agreement or instrument to which it is a party or by which any of its
respective properties or assets is bound or affected, other than such
defaults that could not reasonably be expected to have a Material
Adverse Effect on such Borrower. To the best of its knowledge, no
Event of Default or Default with respect to it has occurred and is
continuing.
4.6. Financial Statements. The most recent audited statement of
assets and liabilities and, if applicable, the most recent semi-annual
asset statement of such Borrower, copies of which have been or will be
furnished to the Banks, have been prepared in conformity with GAAP
applied on a basis consistent with that of the preceding fiscal year
or period and present fairly its financial condition as at such dates
and the results of its operations for the periods then ended, subject
(in the case of the interim financial statement) to year-end audit
adjustments. Since the date of its most recent statement of assets and
liabilities and such semi-annual asset statement, there has been no
Material Adverse Effect on such Borrower.
4.7. Litigation. No claims, litigation, arbitration proceedings
or governmental proceedings that could reasonably be expected to have
a Material Adverse Effect are pending or, to the best of its
knowledge, threatened against such Borrower. Other than any liability
incident to such claims, litigation or proceedings or provided for or
disclosed in the financial statements referred to in Section 4.6 such
Borrower has no contingent liabilities which are material to it other
than those incurred in the ordinary course of business.
4.8. Liens. None of such Borrower's property, revenues or assets
is subject to any Lien, except (i) Liens in favor of the
Banks, if any, and (ii) Liens permitted under Section 5.12
4.9. Purpose. The proceeds of the Loans will be used by such
Borrower to fund shareholder redemptions or the purchase of such
Borrower's shares pursuant to a tender offer for such Borrower's
shares by such Borrower and for other lawful purposes permitted under
the Act, other than leverage, and by its most recent Prospectus and
most recent SAI (if applicable). The proceeds of the Loans will not be
used for leverage. Neither the making of any Loan nor the use
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of the proceeds thereof will violate or be inconsistent with the
provisions of Federal Reserve Board Regulations U or X. Such Borrower
is not engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock. With respect to any Borrower
listed on the attached Schedule 4.9 (as supplemented from time to
time), less than 25% of the assets of such Borrower consists of
"margin stock" as defined under Federal Reserve Board Regulation U.
4.10. Compliance and Government Approvals. Such Borrower, or to
the extent the Borrower is a series of a Trust or a Maryland
corporation, such Trust or Maryland corporation, is in compliance with
all statutes and governmental rules and regulations applicable to it,
including, without limitation, the Act other than immaterial incidents
of non-compliance that could not reasonably be expected to result in a
Material Adverse Effect on such Borrower. No authorization or approval
or other action by, and no notice to or filing with, any Governmental
Authority or other Person is required for the due execution, delivery
or performance by such Borrower of this Agreement, or to the extent
such Borrower is a Trust or a Maryland corporation, the execution and
delivery by such Trust or Maryland corporation of this Agreement on
its behalf.
4.11. Subsidiaries; Investments. Such Borrower, or to the extent
such Borrower is a series of a Trust or a Maryland corporation, such
Trust or Maryland corporation, has no Subsidiaries. Such Borrower has
no equity investments or any interest in any other Person other than
portfolio securities (including investment company securities) which
may have been acquired in the ordinary course of business.
4.12. Investment Policies. Such Borrower's assets are being
invested substantially in accordance with the investment policies and
restrictions set forth in each of its most recent Prospectus and its
most recent SAI (if applicable). Such Borrower is in compliance in all
material respects with all investment policies and restrictions set
forth in its most recent Prospectus and most recent SAI (if
applicable).
4.13. Status of Loans. Such Borrower's obligation in connection
with the repayment of any Loans made to it hereunder shall at all
times constitute its unconditional Debt and will rank at least pari
passu in priority of payment with all of its other present and future
unsecured and unsubordinated Debt of such Borrower.
4.14. ERISA. (a) Such Borrower is not a member of an ERISA Group
or has any liability in respect of any Benefit Arrangement, Plan or
Multiemployer Plan. (b) No Loan made to such Borrower will constitute
a "prohibited transaction" within the meaning of Section 406 of ERISA
or Section 4975 of the Code for which an exemption is not available.
4.15. Taxes. Such Borrower qualifies as a "regulated investment
company" within the meaning of the Code or is treated as a partnership
for federal income tax purposes. Such
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Borrower has filed or caused to be filed tax returns and reports
required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes
or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP have been set aside on its books or where the failure to
file any such return or report or the nonpayment of any such taxes or
charges could not reasonably be expected to have a Material Adverse
Effect on such Borrower.
4.16. Asset Coverage. The Loans to be made to such Borrower are a
"senior security representing indebtedness" for purposes of and as
defined in Section 18 of the Act. Immediately after the making of each
Loan hereunder to such Borrower, the Asset Coverage Ratio of such
Borrower shall be at least 300%.
4.17. Full Disclosure. All written information heretofore
furnished by such Borrower to the Administrative Agent and the Banks
for purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all such written information
hereafter furnished by such Borrower to the Administrative Agent and
the Banks will be, true and accurate in all material respects on the
date as of which such information is stated or certified.
ARTICLE V
COVENANTS
From the date of this Agreement and thereafter until the
expiration or termination of the Commitments and until all Obligations
have been paid or performed in full, each Borrower, or to the extent
such Borrower is a series of a Trust or a Maryland corporation, such
Trust or Maryland corporation not in its individual capacity but on
behalf of such Borrower shall perform the obligations made applicable
to it in this Article V.
5.1. Information. Such Borrower will deliver to the
Administrative Agent (and, in the case of (a), (b), (c) and (e) below,
to each of the Banks):
(a) as soon as available and in any event within 75 days after
the end of each fiscal year of such Borrower, (i) a statement of such
Borrower's 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, or (ii) if different from the foregoing, the statements which
such Borrower is required to prepare under applicable laws and
regulations as of the end of such period, 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;
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(b) as soon as available and in any event within 75 days after
the end of the first semi-annual period of each fiscal year of such
Borrower, (i) a statement of such Borrower's assets and liabilities,
including the portfolio of investments, as of the end of such period,
(ii) if different from the foregoing, the statements which such
Borrower is required to prepare under applicable laws and regulations
as of the end of such period, all certified (subject to normal
year-end adjustments) as to fairness of presentation, GAAP 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, a Compliance
Certificate, if such Borrower has Loans outstanding to it;
(d) promptly after such Borrower obtains knowledge of any Default
or Event of Default with respect to such Borrower, a certificate of an
Authorized Signatory of such Borrower setting forth the details
thereof and the action which such Borrower is taking or proposes to
take with respect thereto;
(e) promptly upon the effectiveness thereof with the Securities
and Exchange Commission or the mailing thereof to its shareholders,
copies of all reports to shareholders, amendments and supplements to
the Prospectus, proxy statements and other materials of a financial or
otherwise material nature by such Borrower;
(f) promptly upon any officer of such Borrower becoming aware of
any action, suit or proceeding of the type described in Section 4.7
against such Borrower, notice and a description thereof and copies of
any filed complaint relating thereto;
(g) promptly upon the effectiveness thereof, copies of all
amendments to such Borrower's investment objectives, policies and
restrictions; and
(h) from time to time such additional information regarding the
financial position or business of such Borrower as the Administrative
Agent, at the request of the Required Banks, may reasonably request.
5.2. Existence. Such Borrower, or to the extent such Borrower is
a series of a Trust or a Maryland corporation, such Trust or Maryland
corporation, shall (i) maintain and preserve its existence as a
registered investment company and, in the case of a Trust or Maryland
corporation which has series funds or portfolios the respective
existence of each of its Borrowers as a "series," within the meaning
of the Act, and (ii) maintain and preserve all rights, privileges,
licenses, copyrights, trademarks, trade names, franchises and other
authority to the extent material and necessary for the conduct of its
business in the ordinary course, unless the failure to do so could not
reasonably be expected to have a Material Adverse Effect on such
Borrower.
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5.3. Nature of Business. Such Borrower, or to the extent such
Borrower is a series of a Trust or a Maryland corporation, such Trust
or Maryland corporation, shall (i) continue in, and limit its
operations to, the business of an open-end or closed-end management
investment company, within the meaning of the Act, and (ii) maintain
in full force and effect at all times all governmental licenses,
registrations, permits and approvals necessary for the continued
conduct of its business, including, without limitation, its
registration with the Securities and Exchange Commission under the Act
as an open-end or closed-end investment company, unless in the case of
(i) or (ii) the failure to do so could not reasonably be expected to
have a Material Adverse Effect on such Borrower.
5.4. Books, Records and Access. Borrower, or to the extent such
Borrower is a series of a Trust or a Maryland corporation, such Trust
or Maryland corporation, as the case may be, shall maintain complete
and accurate books and records in which full and correct entries in
conformity with GAAP shall be made of all transactions in relation to
its business and activities; upon reasonable notice, such Borrower or
such Trust or Maryland corporation, as the case may be, shall permit
access by the Banks to its books and records during normal business
hours and permit the Banks to make extracts of such books and records.
5.5. Insurance. Such Borrower shall maintain in full force and
effect insurance to such extent and against such liabilities as is
commonly maintained by companies similarly situated, including, but
not limited to (i) such fidelity bond coverage as shall be required by
Rule 17g-1 promulgated under the Act or any similar or successor
provision and (ii) errors and omissions, director and officer
liability and other insurance against such risks and in such amounts
(and with such co-insurance and deductibles) as is usually carried by
other companies of established reputation engaged in the same or
similar businesses and similarly situated and will, upon request of
the Administrative Agent, furnish to the Banks a certificate of an
Authorized Signatory setting forth the nature and extent of all
insurance maintained by such Borrower in accordance with this Section.
5.6. Asset Coverage Ratio. Such Borrower shall at all times
maintain an Asset Coverage Ratio of at least 3 to 1 or such other more
restrictive ratio as may be set forth in the most recent Prospectus or
most recent SAI (if applicable) of such Borrower.
5.7. Changes to Organization Documents, etc. Such Borrower, shall
not make or permit to be made any material changes to its Organization
Documents which could have a Material Adverse Effect on such Borrower
without the prior written consent of the Required Banks; provided,
that nothing herein shall limit the ability of a Borrower to convert
to a "master/feeder" structure.
5.8. Service Providers. Such Borrower, shall not change its
accountant, except to a "Big 5" accounting firm, unless the Required
Banks provide their prior written consent to such change, which
consent shall not be withheld by the Required Banks unless, based upon
their
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reasonable judgment, the Required Banks in good faith conclude that
such change will result in a change in the creditworthiness of such
Borrower.
5.9. Payment of Obligations. Such Borrower severally promises to
duly and punctually pay or cause to be paid the principal and interest
on the Loans made to it hereunder and all other amounts payable by it
provided for in this Agreement and the other Loan Documents. Such
Borrower will pay and discharge, at or before maturity, all of its
material obligations and liabilities, except where the same may be
contested in good faith by appropriate proceedings, and appropriate
reserves for the accrual of any of the same are maintained in
accordance with GAAP.
5.10. Compliance with Laws. Such Borrower will comply in all
respects with all applicable laws, ordinances, rules, regulations and
requirements of governmental authorities (including, without
limitation, ERISA and the Act and the rules and regulations
thereunder) and the exchange on which its shares are traded, if any,
except where (a) the necessity of compliance therewith is contested in
good faith by appropriate proceedings, (b) exemptive relief has been
obtained therefrom and remains in effect or (c) the violation thereof
could not reasonably be expected to have a Material Adverse Effect on
such Borrower. Such Borrower will file or cause to be filed 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 such Borrower
and as to which such Borrower has established appropriate reserves on
its books and records or where the failure to file any such return or
report or the nonpayment of any such taxes or charges could not
reasonably be expected to have a Material Adverse Effect on such
Borrower).
5.11. Debt. Such Borrower will not create, incur, assume or
suffer to exist or be or remain liable for any Debt other than
(a) Debt arising under this Agreement and the other Loan
Documents,
(b) overdrafts extended by such Borrower's Custodian in the
ordinary course of business, and
(c) Debt arising in connection with portfolio investments and
investment techniques permissible under the Act and consistent with
such Borrower's investment objectives and policies as stated in the
Prospectus and SAI (if applicable),
provided that in no event shall such Borrower (i) borrow money or
create leverage under any arrangement other than from the Banks
pursuant to this Agreement or on an overnight basis from such
Borrower's Custodian to the extent provided in clause (b) hereof, or
(ii) issue or be or remain liable for or have outstanding any "senior
security" (as defined in the Act) other than the Loans. Such Borrower
will not issue or have outstanding any preferred stock.
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5.12. Negative Pledge. Such Borrower will not 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 in respect of Debt permitted under Section 5.11(b) and (c), (b)
Liens for taxes, assessments or other governmental charges or levies
which are not delinquent or which are being contested in good faith
and by appropriate proceedings diligently conducted, and for which
adequate reserves have been set aside in accordance with generally
GAAP, that enforcement of such Liens is stayed pending such contest,
(c) statutory Liens arising by operation of law such as mechanic's,
materialmen's, carriers' and warehousemen's liens incurred in the
ordinary course of business which are not delinquent or which are
being contested in good faith and by appropriate proceedings
diligently conducted, and for which adequate reserves have been set
aside in accordance with GAAP, provided that enforcement of such Liens
is stayed pending such contest, (d) Liens arising out of judgments or
decrees which are being contested in good faith and by appropriate
proceedings diligently conducted, and for which adequate reserves have
been set aside in accordance with GAAP, provided that enforcement
thereof is stayed pending such contest, and (e) Liens in favor of such
Borrower's Custodian granted pursuant to the custody agreement with
the Custodian to secure obligations arising under such custody
agreement.
5.13. Consolidations, Mergers and Sales of Assets. Such Borrower
will not consolidate or merge with or into any other Person (other
than another Borrower) or reorganize its assets into series of a
series corporation or entity, nor will such Borrower sell, lease or
otherwise transfer, directly or indirectly, all or any substantial
part of its assets to any other Person (other than another Borrower)
except that such Borrower may sell its assets in the ordinary course
of business as described in its Prospectus or SAI (if applicable).
5.14. Use of Proceeds. The proceeds of the Loans made under this
Agreement to such Borrower will be used by such Borrower solely for
the funding of shareholder redemptions or tender offers, as
applicable, and other lawful purposes under the Act, other than for
leverage.
5.15. Compliance with Prospectus. Such Borrower will at all times
comply in all material respects with the investment objectives,
limitations and policies set forth (or incorporated by reference) in
its Prospectus or SAI (if applicable). Nothing in this Section 5.15,
except as specifically provided in the next succeeding sentence, shall
be deemed to limit the ability of such Borrower to amend its
non-fundamental investment objectives, policies or restrictions,
provided that such Borrower shall comply with the requirements of
Section 5.1(g). Such Borrower will not permit its fundamental
investment objective or any fundamental policy or restriction or its
diversified or non-diversified status to be changed from those in
effect on the date hereof and reflected in its Prospectus or SAI (if
applicable) delivered to the Banks pursuant to the terms hereof or of
the Existing Credit Agreement, if any such change would require the
approval of such Borrower's shareholders (other than a conversion to a
"master/feeder" structure), without the prior written consent of the
Required Banks. Such Borrower will maintain its status as an open-end
or closed-end management investment company. Changes in the Borrower's
organizational structure to a "master/feeder" structure shall not be
made prior to such Borrower giving notice of such change to the Banks.
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5.16. Tax Status. Such Borrower will maintain its status as a
"regulated investment company" under the Code at all times and will
make sufficient distributions to qualify as a "regulated investment
company" pursuant to subchapter M of the Code or its status as a
partnership for federal income tax purposes.
5.17. No Subsidiary. Such Borrower will not at any time have any
Subsidiary.
5.18. ERISA. Such Borrower will not become a member of any ERISA
Group nor incur any liability in respect of any Benefit Arrangement,
Plan or Multiemployer Plan, including without limitation for benefits
thereunder.
5.19. Distributions. Such Borrower will not make any
Distribution, if a Default or Event of Default has occurred and is
continuing or will exist after giving effect thereto provided that
notwithstanding the foregoing, such Borrower shall be permitted to (a)
declare and pay Distributions on or in respect of its common stock or
shares each month in an amount equal to the undistributed net
investment income for such month, (b) distribute each year all of its
net investment income (including net realized capital gains) so that
it will not be subject to tax (including corporate and/or excise
taxes) under the Code (provided, that if any Borrower's net investment
income (including net realized capital gains) calculated on a tax
basis exceeds its net investment income calculated in accordance with
GAAP, such Borrower may also distribute such excess to its
shareholders) and (c) satisfy shareholder redemptions or tender
offers, unless, in any case (i) a Default or Event of Default under
Sections 6.1(d) or 6.1(e) has occurred and is continuing with respect
to such Borrower, or (ii) such Borrower has failed to pay when due any
principal of or any interest on any Loan made to such Borrower, after
giving effect to any grace period, and such failure has not been
cured. Nothing in the preceding sentence shall be deemed or construed
to limit the Banks' ability to exercise their remedies hereunder with
respect to such Borrower upon the occurrence and during the
continuance of an Event of Default hereunder.
5.20. Custodian. Such Borrower, will at all times maintain or
cause to be maintained as its Custodian either (a) its Custodian on
the date hereof as listed on Schedule 5.20 attached hereto (as
supplemented from time to time) or (b) with prior written notice to
the Administrative Agent, any Bank or other entity which is a bank or
trust company organized under the laws of the United States and having
both (i) assets of at least $10 billion and (ii) a long-term debt
rating of not less than A from S&P or A2 from Moody's.
5.21. Acquisitions. Such Borrower will not purchase or otherwise
acquire all or substantially all of the assets of any other Person
(other than another Borrower).
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ARTICLE VI
EVENTS OF DEFAULTS
6.1. Events of Default. Each of the following shall constitute an
Event of Default with respect to a Borrower under this Agreement (it
being understood that an Event of Default with respect to a Borrower
shall not constitute an Event of Default with respect to any other
Borrower):
(a) Default in payment by a Borrower (i) when and as required to
be paid herein of any amount of principal of any Loan or (ii) within
five days after the same becomes due of any interest, fee or any other
amount payable hereunder or under any other Loan Document.
(b) Default by a Borrower in the payment when due, whether by
acceleration or otherwise (subject to any applicable grace period), of
any Debt (other than the Loans) of, or guaranteed by, such Borrower in
excess of 5% of such Borrower's then-current Net Asset Value.
(c) Any event or condition shall occur that results in the
acceleration of the maturity of any Debt (other than the Loans) of, or
guaranteed by, a Borrower or enables the holder or holders of such
other Debt or any trustee or agent for such holders (any required
notice of default having been given and any applicable grace period
having expired) to accelerate the maturity of such other Debt in
excess of 5% of such Borrower's then-current total Net Asset Value.
(d) A Borrower (i) ceases or fails to be solvent, or generally
fails to pay, or admits in writing its inability to pay, its debts as
they become due, subject to applicable grace periods, if any, whether
at stated maturity or otherwise; (ii) commences any Insolvency
Proceeding with respect to itself; or (iii) takes any action to
effectuate or authorize any of the foregoing.
(e) (i) Any involuntary Insolvency Proceeding is commenced or
filed against a Borrower, or any writ, judgment, warrant of
attachment, execution or similar process is issued or levied against a
substantial part of its assets, and any such proceeding or petition
shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully
bonded within 60 days after commencement, filing or levy; (ii) a
Borrower admits the material allegations of a petition against it in
any Insolvency Proceeding, or an order for relief (or similar order
under non-U.S. law) is ordered in any Insolvency Proceeding; or (iii)
it acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor)
or other similar Person for itself or a substantial portion of its
property or business.
(f) A Borrower shall default in the performance of its agreements
under (i) Section 5.1(d), 5.2(i), 5.3(i), 5.8, 5.11, 5.13 or 5.14 or
(ii) Section 5.6, and in the case of Section 5.6 such default is not
cured within three (3) Business Days.
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(g) A Borrower shall default in the performance of its other
agreements herein set forth (and not constituting an Event of Default
under any of the other subsections of this Section 6.1), and such
default shall continue for 30 days after notice thereof to such
Borrower from the Administrative Agent.
(h) Any representation or warranty made by a Borrower herein, or
in any schedule, statement, report, notice, certificate or other
writing furnished by it on or as of the date as of which the facts set
forth therein are stated or certified, is untrue or misleading in any
material respect when made or deemed made or any certification made or
deemed made by it to the Banks is untrue or misleading in any material
respect on or as of the date made or deemed made.
(i) There shall be entered against a Borrower one or more
judgments or decrees which, when taken together, will exceed the
lesser of 5% of such Borrower's Net Asset Value and $5,000,000,
excluding those judgments or decrees (i) that shall have been stayed
or discharged less than 30 calendar days from the entry thereof and
(ii) those judgments and decrees for and to the extent which such
Borrower is insured and with respect to which the insurer has assumed
responsibility in writing or for and to the extent which such Borrower
is otherwise indemnified if the terms of such indemnification and the
Person providing such indemnification are satisfactory to the Required
Banks.
(j) The investment adviser of a Borrower shall cease to be an
Affiliate of Merrill Lynch & Co., Inc.
6.2. Remedies. If any Event of Default described in Section 6.1
shall have occurred and be continuing with respect to a Borrower, the
Administrative Agent, upon the direction of the Required Banks, shall
declare the Commitments to be terminated with respect to the
applicable Borrower and such Borrower's Obligations to be due and
payable, whereupon such Commitments shall immediately terminate with
respect to such Borrower and such Obligations shall become immediately
due and payable, all without advance notice of any kind (except that
if an event described in Section 6.1(d) or Section 6.1(e) occurs with
respect to such Borrower, the Commitments shall immediately terminate
with respect to such Borrower and the Obligations with respect to such
Borrower shall become immediately due and payable without declaration
or advance notice of any kind). The Administrative Agent shall
promptly advise such Borrower of any such declaration, but failure to
do so shall not impair the effect of such declaration. If an Event of
Default shall have occurred and be continuing with respect to a
Borrower, the Administrative Agent may exercise on behalf of itself
and the Banks all rights and remedies available to it and the Banks
against such Borrower under the Loan Documents or applicable law.
6.3. Notice of Default. The Administrative Agent shall give
notice to a Borrower under Section 6.1(g) promptly upon being
requested to do so by the Required Banks and shall thereupon notify
all the Banks thereof.
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ARTICLE VII
THE ADMINISTRATIVE AGENT
7.1. Appointment and Authorization. Subject to Section 7.7
hereof, each Bank irrevocably appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents
as are delegated to the Administrative Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental
thereto.
7.2. Action by the Administrative Agent. The duties and
responsibilities of the Administrative Agent hereunder are only those
expressly set forth herein. The relationship between the
Administrative Agent and the Banks is and shall be that of agent and
principal only, and nothing contained in this Agreement or any of the
other Loans Documents shall be construed to constitute the
Administrative Agent as a trustee for any Bank. Without limiting the
generality of the foregoing, the Administrative Agent shall not be
required to take any action with respect to any Default or Event of
Default, except as expressly provided in Article VI.
7.3. Consultation with Experts. The Administrative Agent may
consult with legal counsel, independent public accountants and other
experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice
of such counsel, accountants or experts.
7.4. Liability of the Administrative Agent. Neither the
Administrative Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or not taken by it in
connection herewith (a) with the consent or at the request of the
Required Banks or (b) in the absence of its own gross negligence or
willful misconduct. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into or verify (i) any statement,
warranty or representation made by any other Person in connection with
this Agreement or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any Borrower;
(iii) the satisfaction of any condition specified in Article III,
except, receipt of items required to be delivered to it; or (iv) the
validity, enforceability, effectiveness or genuineness of this
Agreement (except as to its own execution of this Agreement), the
other Loan Documents or any other instrument or writing furnished in
connection herewith or therewith. The Administrative Agent shall not
incur any liability by acting in reliance upon any notice, consent,
certificate, statement or other writing (which may be a bank wire,
telex or similar writing) reasonably believed by it to be genuine or
to be signed by the proper party or parties.
7.5. Indemnification. The Banks hereby ratably agree to indemnify
the Administrative Agent (to the extent not reimbursed by the
Borrowers) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such
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as directly result from the Administrative Agent's gross negligence or
willful misconduct) that the Administrative Agent may suffer or incur
in connection with this Agreement or any of the other Loan Documents
or any action taken or omitted by the Administrative Agent hereunder
or thereunder.
7.6. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or
any other Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or
any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking any action under this Agreement.
7.7. Successor Administrative Agents. The Administrative Agent
may resign at any time by giving written notice thereof to the Banks
and the Borrowers. Upon any such resignation, the Required Banks shall
have the right to appoint a successor Administrative Agent with the
prior written consent of the Borrowers, which consent shall not be
unreasonably withheld or delayed. If no successor Administrative Agent
shall have been so appointed by the Required Banks within 30 days
after the retiring Administrative Agent gives notice of resignation,
then the retiring Administrative Agent may, on behalf of the Banks,
appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed under the laws of the United States of
America or of any State thereof and having a combined capital and
surplus of at least $50,000,000. Upon the acceptance of its
appointment as an Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights and duties
of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder.
After any retiring Administrative Agent's resignation hereunder as an
Administrative Agent, the provisions of this Article shall inure to
its benefit as to any actions taken or omitted to be taken by it while
it was an Administrative Agent.
7.8. Administrative Agent as a Bank. In its individual capacity,
Bank One and any other Bank that serves as a successor Administrative
Agent hereunder shall have the same obligations and the same rights,
powers and privileges in respect of its Commitment and the Loans made
by it as it would have were it not also an Administrative Agent.
7.9. Distribution by the Administrative Agent. If in the opinion
of the Administrative Agent the distribution of any amount received by
it in such capacity hereunder or under any of the other Loan Documents
might involve it in liability, it may refrain from making such
distribution until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received and
distributed by the Administrative Agent is to be repaid, each Person
to whom any such distribution shall have been made shall either repay
to the Administrative Agent its
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proportionate share of the amount so adjudged to be repaid or shall
pay over the same in such manner and to such Persons as shall be
determined by such court.
7.10. Delinquent Banks. (a) Notwithstanding anything to the
contrary contained in this Agreement or any of the other Loan
Documents, any Bank that (i) willfully does not or (ii) does not as a
result of a Failure (as defined below) (A) make available to the
Administrative Agent its pro rata share of any Loan, or (B) comply
with the provisions of Section 8.4 with respect to making dispositions
and arrangements with the other Banks, where such Bank's share of any
payment received, whether by setoff or otherwise, is in excess of its
pro rata share of such payments due and payable to all of the Banks,
in each case as, when and to the full extent required by the
provisions of this Agreement, shall be deemed delinquent (a
"Delinquent Bank") and shall be deemed a Delinquent Bank until such
time as such delinquency is satisfied. A Delinquent Bank shall be
deemed to have assigned any and all payments due to it from the
Borrowers, whether on account of outstanding Loans, interest, fees or
otherwise, to the remaining nondelinquent Banks for application to,
and reduction of, their respective pro rata shares of all outstanding
Loans. The Delinquent Bank hereby authorizes the Administrative Agent
to distribute such payments to the nondelinquent Banks in proportion
to their respective pro rata shares of all outstanding Loans. A
Delinquent Bank shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned
payments to all outstanding Loans of the nondelinquent Banks, the
Banks' respective pro rata shares of all outstanding Loans have been
returned to those in effect immediately prior to such delinquency and
without giving effect to the nonpayment causing such delinquency.
(b) For purposes of this Section 7.10, a Failure of a Bank shall
mean (i) it shall seek the appointment of a trustee, receiver,
liquidator, custodian or other similar official for it or any
substantial part of its property, or shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its 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 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 (ii) it makes a general assignment
for the benefit of creditors, or shall fail generally to pay its debts
as they become due, or shall take any corporate action to authorize
any of the foregoing, or (iii) an involuntary case or other proceeding
shall be commenced against it seeking liquidation, reorganization or
other relief with respect to it or its 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 official of it, or (iv) an order for relief shall be entered
against it under the federal bankruptcy laws as now or hereafter in
effect.
7.11. Syndication Agent; Co-Documentation Agents. None of the
Banks identified on the facing page of this Agreement as a
"syndication agent" or a "co-documentation agent" shall have any
right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Banks as such. Without
limiting the foregoing, none of the
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Banks so identified as a "syndication agent" or "co-documentation
agent" shall have or be deemed to have any fiduciary relationship with
any Bank. Each Bank acknowledges that it has not relied, and will not
rely, on any of the Banks so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE VIII
MISCELLANEOUS
8.1. Notices. All notices, requests, consents and other
communications to any party hereunder shall be in writing (including
bank wire, 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; provided that notices to the Administrative Agent
under Article II or Article VII shall not be effective until received.
8.2. No Waivers. No failure or delay by the Administrative Agent
or any Bank in exercising any right, power or privilege hereunder or
under any other Loan Document 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.
8.3. Expenses; Documentary Taxes; Indemnification. (a) Each
Borrower severally agrees to pay its pro rata share of (i) all
reasonable out-of-pocket expenses of the Administrative Agent,
including the fees and disbursements of special counsel for the Agent,
in connection with the preparation, negotiation and closing of this
Agreement and the other Loan Documents, the syndication of the
facility established hereby, any waiver or consent hereunder or any
amendment hereof, any waiver of any Event of Default or alleged Event
of Default hereunder, and any termination hereof, provided, that no
Borrower shall be liable for any such expenses incurred in connection
with any amendment or waiver that does not relate to or affect such
Borrower and such expenses shall be borne by the Borrowers to which
they relate based upon their pro rata share thereof and (ii) if an
Event of Default occurs with respect to such Borrower, all reasonable
out-of-pocket expenses incurred by the Administrative Agent and each
Bank in connection therewith, including fees and disbursements of
counsel, provided that reimbursement shall be for no more than one
counsel for the Administrative Agent and the Banks plus any local
counsel that counsel for the Administrative Agent and the Banks shall
deem necessary, in each case incurred in connection with such Event of
Default and collection,
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bankruptcy, insolvency and other enforcement proceedings resulting
therefrom. Each Borrower severally agrees to indemnify each Bank
against its pro rata share of 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 other Loan
Documents.
(b) In consideration of the execution and delivery of this
Agreement by each Bank and the extension of the Commitments, each
Borrower hereby severally indemnifies, exonerates and holds the
Administrative Agent and each Bank and each of their respective
officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all
actions, causes of action, suits, losses, costs, liabilities and
damages, and expenses incurred in connection therewith (irrespective
of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them as a
result of, or arising out of, or relating to:
(i) the use by such Borrower of the proceeds of any Loan;
and
(ii) the entering into and performance of this Agreement and
any of the other Loan Documents by any of the Indemnified Parties
(including any action brought by or on behalf of such Borrower as
the result of any determination pursuant to Article III not to
fund any Borrowing, but only to the extent that such Borrower is
not the prevailing party);
except for any such Indemnified Liabilities arising for the account of
a particular Indemnified Party by reason of the relevant Indemnified
Party's gross negligence or willful misconduct or arising out of any
action between or among the Administrative Agent and the Banks. If and
to the extent that the foregoing undertaking may be unenforceable for
any reason, such Borrower hereby severally agrees to make the maximum
contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. No
Borrower shall be liable for any consequential damages.
8.4. Set Off. During the continuance of any Event of Default and
the acceleration of the Obligations, any deposits or other sums
credited by or due from any of the Banks to a Borrower, and any
securities or other property of a Borrower in the possession of such
Bank (except to the extent such Bank is holding any securities or
other assets of such Borrower in its capacity as custodian of such
Borrower) may be applied to or set off by such Bank against the
payment of the Obligations of such and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, of such Borrower to such Bank. Each of
the Banks agrees with each other Bank that (a) if an amount to be set
off is to be applied to Debt of a Borrower to such Bank, other than
Debt owing hereunder to such Bank, such amount shall be applied
ratably to such other Debt and to the Obligations owing to such Bank,
and (b) if such Bank shall receive from such Borrower whether by
voluntary payment, exercise of the right of set off, counterclaim,
cross action, or enforcement of a claim based on the
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Obligations of such Borrower owing to such Bank by proceedings against
such Borrower at law or in equity or by proof thereof in bankruptcy,
reorganization, liquidation, receivership or similar proceedings, or
otherwise, and shall retain and apply to the payment of the
Obligations of such Borrower owing to such Bank any amount in excess
of its ratable portion of the payments received by all of the Banks
with respect to the Obligations of such Borrower owed to all of the
Banks, such Bank will make such disposition and arrangements with the
other Banks with respect to such excess, either by way of
distribution, pro tanto assignment of claims, subrogation or otherwise
as shall result in each Bank receiving in respect of the Obligations
of such Borrower owing to it its proportionate payment as contemplated
by this Agreement; provided that if all or any part of such excess
payment is thereafter recovered from such Bank, such disposition and
arrangements shall be rescinded and the amount restored to the extent
of such recovery, but without interest.
8.5. Amendments and Waivers. Any provision of this Agreement 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 Required Banks (and, if the rights or duties of the
Administrative Agent are affected thereby, by the Administrative
Agent); provided that no such amendment or waiver shall, unless signed
by all the Banks (a) increase or decrease the Commitment Amount of any
Bank (except as provided in Section 8.6(c)) or subject any Bank to any
additional obligation, (b) reduce or forgive the principal of or rate
of interest on any Loan or any fees to the Banks hereunder, (c)
postpone the final date fixed for any payment of principal of or
interest on any Loan or any fees to the Banks hereunder or for the
termination of the Commitments (except as provided in Section 2.6), or
(d) change the percentage of the Commitment Amounts or of the
aggregate unpaid principal amount of the Loans, or the number of
Banks, which shall be required for the Banks or any of them to take
any action under this Section or any other provision of this
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.
8.6. 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 all of the Banks.
(b) Any Bank may at any time grant to one or more commercial
banks that are able to make the representation and warranty contained
in Section 8.12 (each a "Participant") participating interests in its
Commitment or all of its Loans. In the event of any such grant by a
Bank of a participating interest to a Participant, whether or not upon
notice to the Borrowers and the Administrative Agent, such Bank shall
remain responsible for the performance of its obligations hereunder,
and the Borrowers and the Administrative Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's
rights and obligations under this Agreement. Any agreement pursuant to
which any Bank may grant such a participating
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interest shall provide that such Bank shall retain the sole right and
responsibility to enforce the obligations of the Borrowers hereunder,
including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided
that such participation agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this Agreement
described in clause (a), (b), (c) or (d) of Section 8.5 without the
consent of the Participant. An assignment or other transfer which is
not permitted by clause (c) or (d) below shall be given effect for
purposes of this Agreement only to the extent of a participating
interest granted in accordance with this clause (b).
(c) Any Bank may at any time assign to one or more commercial
banks that are able to make the representation and warranty contained
in Section 8.12 (each an "Assignee") all or a minimum of $15,000,000
of its rights and obligations under this Agreement and the other Loan
Documents, and such Assignee shall assume such rights and obligations,
pursuant to an assignment and acceptance agreement (an "Assignment and
Acceptance") in substantially the form of Exhibit G attached hereto
executed by such Assignee and such transferor Bank, with, if no Event
of Default has occurred and is continuing with respect to one or more
Borrowers that have Loans outstanding, the written consent of the
Borrowers, which consent shall not be unreasonably withheld or
delayed, and of the Administrative Agent; provided, that an assignment
to a Bank shall not be required to be in any minimum amount. Upon
execution and delivery of such instrument and payment by such Assignee
to such transferor Bank of an amount equal to the purchase price
agreed between such transferor Bank and such Assignee, such Assignee
shall be a Bank party to this Agreement and shall have all the rights
and obligations of a Bank with Commitment Amounts, as set forth in
such instrument of assumption, and the transferor Bank shall be
released from its obligations hereunder to a corresponding extent, and
no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this clause (c), the
Administrative Agent shall be authorized to revise Schedule 1 to
reflect such assignment and to circulate such revised schedule to the
Administrative Agent, the Banks and the Borrowers. In connection with
any such assignment, the transferor Bank shall pay to the
Administrative Agent a fee for processing such assignment in the
aggregate amount of $3,500. If the Assignee is not incorporated under
the laws of the United States of America or a state thereof, it shall
deliver to the Borrowers and the Administrative Agent certification as
to exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 2.13.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement to a Federal Reserve Bank. No such
assignment shall release the transferor Bank from its obligations
hereunder.
8.7. Additional Borrowers. Other investment companies (or series
of investment companies), in addition to those Borrowers which are
original signatories to this Agreement, may, with the written approval
of all the Banks, become parties to this Agreement and be deemed
Borrowers for all purposes of this Agreement by executing an
instrument substantially in the form of Exhibit H hereto (with such
changes therein as may be approved by the Banks), which
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instrument shall (i) have attached to it a copy of this Agreement (as
the same may have been amended) with a revised Allocation Notice
reflecting the participation of such additional investment company and
(ii) be accompanied by the documents and instruments required to be
delivered by the Borrowers pursuant to Section 3.1 hereof, including,
without limitation, an opinion of counsel for such Borrower, in a form
reasonably satisfactory to the Administrative Agent and its counsel;
provided, however, that no such additional Borrower shall be added
unless all the Banks consent, except that to the extent an existing
Borrower converts to a "master/feeder" structure, no consent shall be
required for the master trust in such structure to become a Borrower
hereunder after such conversion, provided the converting Borrower
ceases to be a Borrower hereunder on or prior to such conversion.
Additional Borrowers may be added to this Agreement only once per each
calendar quarter.
No investment company (or series of an investment company) shall
be admitted as a party to this Agreement as a Borrower unless at the
time of such admission and after giving effect thereto: (i) the
representations and warranties set forth in Article IV hereof shall be
true and correct with respect to such Borrower; (ii) such Borrower
shall be in compliance in all material respects with all of the terms
and provisions set forth herein on its part to be observed or
performed at the time of the admission and after giving effect
thereto; and (iii) no Default or Event of Default with respect to such
Borrower shall have occurred and be continuing.
8.8. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
AND EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF
THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE BANKS 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 STATE OF NEW
YORK OR ANY FEDERAL COURT IN EACH CASE SITTING IN NEW YORK COUNTY AND
CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE
OF PROCESS IN ANY SUCH SUIT BEING MADE UPON EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE BANKS BY MAIL AT THE ADDRESS SPECIFIED IN
SECTION 8.1. EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE
BANKS 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.
8.9. 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
-41-
<PAGE>
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.
8.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE BANKS 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.
8.11. Confidentiality. Each Bank and the Administrative Agent
agrees (on behalf of itself and each of its affiliates, directors,
officers, employees and representatives) to use reasonable precautions
to keep confidential, in accordance with their customary procedures
for handling confidential information of this nature and in accordance
with safe and sound banking practices, any non-public information
supplied to it by or on behalf of the Borrowers pursuant to this
Agreement, provided that nothing herein shall limit the disclosure of
any such information (a) to the extent required by statute, rule,
regulation or judicial process, (b) to counsel for any of the Banks or
the Administrative Agent in connection with this Agreement, (c) to
bank examiners, auditors or accountants, (d) to the Administrative
Agent or any Bank, (e) in connection with any litigation to which any
one or more of the Banks or the Administrative Agent is a party
arising out of or in connection with this Agreement, or (f) to any
assignee or participant (or prospective assignee or participant) so
long as such assignee or participant (or prospective assignee or
participant) first agrees in writing to be bound by the terms of this
Section 8.11; provided, further, that unless specifically prohibited
by applicable law or court order, each Bank and the Administrative
Agent shall, prior to disclosure thereof, notify the Borrowers of any
request for disclosure of any such non-public information (i) by any
governmental agency or representative thereof (other than any such
request in connection with an examination of the financial condition
of such Bank by such governmental agency) or (ii) pursuant to legal
process.
8.12. Representations and Warranties of the Banks. Each Bank
hereby represents and warrants to the Borrowers that it is (1) (A) a
banking institution organized under the laws of the United States, (B)
a member bank of the Federal Reserve System or (C) any other banking
institution or trust company, whether incorporated or not, doing
business under the laws of any State or of the United States, a
substantial portion of the business of which consists of receiving
deposits or exercising fiduciary powers similar to those permitted to
national banks under the authority of the Comptroller of the Currency,
and which is supervised and examined by State or Federal authority
having supervision over banks, and which is not operated for the
purpose of evading the provisions of the Act and (2) it is not
"affiliated" (within the meaning of the Act) with any Borrower or the
Adviser. Each Bank will immediately notify the Borrowers if such Bank
is no longer able to make the representations and warranties stated in
the preceding sentence.
-42-
<PAGE>
[Remainder of page left blank]
-43-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the
day and year first above written.
BANK ONE, NA,
Individually and as Administrative Agent
By:
-------------------------------------
Title
<PAGE>
STATE STREET BANK AND TRUST COMPANY,
Individually and as Co-Documentation Agent
By:
---------------------------------------
Title
<PAGE>
THE BANK OF NEW YORK
Individually and as Syndication Agent
By:
-------------------------------------
Title
<PAGE>
NATIONAL AUSTRALIA BANK LIMITED
Individually and as Co-Documentation Agent
By:
---------------------------------------
Title
<PAGE>
CITIBANK, N.A.
By:
---------------------------------------
Title
<PAGE>
BROWN BROTHERS HARRIMAN & CO.
By:
---------------------------------------
Title
<PAGE>
BNP PARIBAS
By:
---------------------------------------
Title
<PAGE>
ABN AMRO BANK N.V.
By:
---------------------------------------
Title
<PAGE>
THE CHASE MANHATTAN BANK
By:
---------------------------------------
Title
<PAGE>
MELLON BANK, N.A.
By:
---------------------------------------
Title
<PAGE>
HSBC BANK USA
By:
---------------------------------------
Title
<PAGE>
BANK OF AMERICA, N.A.
By:
---------------------------------------
Title
<PAGE>
THE BANK OF NOVA SCOTIA
By:
---------------------------------------
Title
<PAGE>
Exhibit A
---------
FORM OF ALLOCATION NOTICE
Date:
------
To: Bank One, NA, as Administrative Agent for the Banks party to the
Amended and Restated Credit Agreement dated as of December 1,
2000 (as amended and in effect from time to time, the "Credit
Agreement") among the Borrowers party thereto, The Bank of New
York, as syndication agent, State Street Bank and Trust Company,
as co-documentation agent, National Australia Bank Limited, as
co-documentation agent, the Banks party thereto and Bank One, NA,
as Administrative Agent
Ladies and Gentlemen:
Reference is hereby made to the aforesaid Amended and Restated
Credit Agreement dated as of December 1, 2000 (the "Credit Agreement")
(the terms defined therein being used herein as therein defined). This
instrument is an Allocation Notice as contemplated by the Credit
Agreement.
The allocation of liability of the Borrowers in respect of all
liabilities, obligations, fees and expenses under the Credit Agreement
(other than principal and interest) shall be as set forth herein and
shall be effective from the date hereof until a later dated Allocation
Notice is delivered to the Administrative Agent.
================================================================================
Name of Borrower % Allocation
--------------------------------------------------------------------------------
[insert Borrower's name]
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE>
================================================================================
Name of Borrower % Allocation
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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100%
================================================================================
[Borrower's name]
By
------------------------
Title
---------------------
[Borrower's name]
By
------------------------
Title
---------------------
[Borrower's name]
By
------------------------
Title
---------------------
<PAGE>
Exhibit B
---------
FORM OF
NOTICE OF BORROWING
DATE:
-----------------------
TO: Bank One, NA
ATTN:
----------------------
FROM: [Borrower's name]
In connection with the Amended and Restated Credit Agreement,
dated as of December 1, 2000, among the Borrowers party thereto, the
Banks party thereto, The Bank of New York, as syndication agent, State
Street Bank and Trust Company, as co-documentation agent, National
Australia Bank Limited, as co-documentation agent and Bank One, NA, as
Administrative Agent (as amended and in effect from time to time, the
"Credit Agreement"), please increase the outstanding balance of Loans
as indicated below. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have
the same meanings herein as in the Credit Agreement.
(a) Name of Borrower: --------------------------
(b) Date of proposed Borrowing: --------------------------
(c) Swing Advance or Commitment Loan --------------------------
(d) Amount of Loan requested: $
-------------------------
(e) Type of Loan requested: --------------------------
(f) Aggregate principal amount of Loans
outstanding by the borrowing Borrower
to all Banks (including Loan requested): $
-------------------------
(g) Asset Coverage Ratio for the borrowing
Borrower after giving effect to proposed
Borrowing: --------------------------
(h) Each of the representations and warranties of the borrowing
Borrower in the Credit Agreement shall be true and correct as of the
date of the proposed borrowing (unless such representation and
warranty shall relate solely to an earlier date, in which such
representation and warranty shall be true and correct as of such
earlier date).
<PAGE>
(i) No Default or Event of Default with respect to the borrowing
Borrower has occurred and is continuing both before and after giving
effect to the proposed Borrowing.
[Borrower's name]
By:
--------------------------
Title:
-----------------------
<PAGE>
Exhibit C
---------
NOTICE OF CONVERSION OR PAYDOWN
TO: Bank One, NA as Administrative Agent for the Banks party to the
Amended and Restated Credit Agreement dated as of December 1, 2000 (as
amended and in effect from time to time, the "Credit Agreement") among
the Borrowers party thereto, the Banks party thereto, The Bank of New
York, as syndication agent, State Street Bank and Trust Company, as
co-documentation agent, National Australia Bank Limited, as
co-documentation agent and Bank One, NA, as Administrative Agent.
FROM: [Borrower's name]
DATE:
-------------------
Conversion ( )
----------------------------------------------------------------------
Existing Loan New Loan
Type Amount Date Type Amount Date
----------------------------- -----------------------------
Base Rate ( ) $ Base Rate ( ) $
----- ---------- ----- ----------
Fed Funds ( ) $ Fed Funds ( ) $
----- ---------- ----- ----------
----------------------------------------------------------------------
----------------------------------------------------------------------
Paydown on ( ) on Paydown Wire Instructions
------------------
Existing Loan
Type Amount Date
-----------------------------
Base Rate ( ) $
----- ----------
Fed Funds ( ) $
----- ----------
----------------------------------------------------------------------
Authorized Signatory Date
----------------- -----------------
Authorized Signatory Date
----------------- -----------------
Ticket #
---------
<PAGE>
Exhibit D
---------
FORM OF NOTE
$ Date:
----------------------- ---------------
FOR VALUE RECEIVED, each Borrower severally hereby promises to
pay to the order of (the "Bank") at [address of bank]:
(a) prior to or on the Termination Date the principal amount
of [INSERT BANK'S COMMITMENT AMOUNT] Dollars ($_____ ) or, if
less, the aggregate unpaid principal amount of Loans advanced by
the Bank to such Borrower pursuant to the Amended and Restated
Credit Agreement dated as of December 1, 2000 (as amended and in
effect from time to time, the "Credit Agreement"), among the
Borrowers, the Banks, The Bank of New York, as syndication agent,
State Street Bank and Trust Company, as co-documentation agent,
National Australia Bank Limited, as co-documentation agent and
Bank One, NA, as Administrative Agent; and
(b) interest on the principal balance hereof from time to
time outstanding 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 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 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.
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 made to such Borrower or at
the time of receipt of any payment of principal of this Note, 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 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 made to a Borrower
shall be prima facie evidence of the principal amount thereof owing
and unpaid severally by such Borrower 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
<PAGE>
the obligation of any Borrower hereunder or under the Credit Agreement
to make several payments of principal and of interest on this Note
when due
The Borrowers have the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or
part of the principal of this Note severally owing by such Borrower on
the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur and be
continuing with respect to a Borrower, the entire unpaid principal
amount of this Note severally owing by 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.
Except to the extent otherwise provided in the Credit Agreement,
each Borrower 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
assent 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 THE BORROWERS HEREUNDER SHALL
FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned have caused this Note to be
signed in its name by their respective duly authorized officers as of
the day and year first above written.
[Borrowers]
By:
--------------------------
Title:
-----------------------
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
--------------------------------------------------------------------------------------------------------------------------------
Amount and Type Amount of
Date Borrower of Loan Principal Repaid Balance of Principal Notation Made By
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit E
---------
TEXT OF BORROWERS' COUNSEL OPINION
This Opinion is being furnished pursuant to Section 3.1 of the
Amended and Restated Credit Agreement (the "Credit Agreement") dated
as of December 1, 2000 among the Borrowers party thereto, the Banks
party thereto, The Bank of New York, as syndication agent, State
Street Bank and Trust Company, as co-documentation agent, National
Australia Bank Limited, as co-documentation agent and Bank One, NA, as
Administrative Agent.
[Each Delaware Trust is duly formed and legally existing under
the laws of the State of Delaware.]*
[Each Massachusetts Trust has been duly established as a
voluntary association with transferable shares of beneficial interest
commonly referred to as a Massachusetts business trust, and is
existing and in good standing under and by virtue of the laws of the
Commonwealth of Massachusetts.]*
[Each Maryland Corporation is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Maryland.]*
[Each Borrower, or to the extent such Borrower is a series of a
Trust or a Maryland Corporation, such Trust or Maryland Corporation on
behalf of such Borrower, has the corporate or trust power and
authority to enter into and to perform the obligations of such
Borrower under the Credit Agreement.]*
The execution and delivery by each Borrower, or to the extent
such Borrower is a series of a Trust or a Maryland Corporation, by
such Trust or Maryland Corporation on behalf of such Borrower, of the
Credit Agreement, the borrowing of the Loans pursuant to the Credit
Agreement by each Borrower, or to the extent such Borrower is a series
of a Trust or a Maryland Corporation, by such Trust or Maryland
Corporation on behalf of such Borrower, and the performance by each
Borrower, or to the extent such Borrower is a series of a Trust or a
Maryland Corporation, by such Trust or Maryland Corporation on behalf
of such Borrower, of its agreements and obligations under the Credit
Agreement have been duly authorized by all requisite corporate or
trust action, where necessary, on the part of each Borrower, or to the
extent such Borrower is a series of a Trust or a Maryland Corporation,
on the part of such Trust or Maryland Corporation, and do not and will
not (a) conflict with the organization documents or bylaws [or the
most recent Prospectus or the most recent SAI]* of any Borrower, (b)
contravene or constitute a default under any provision of any New York
State or Federal law, rule or regulation applicable to any Borrower,
(c) [constitute a violation of or a default under or result in the
creation of any mortgage, lien, pledge, charge, security interest or
encumbrance upon the property of any Borrower under the Custody
Agreement, Investment Advisory Agreement, the Transfer Agency
Agreement, the Distribution Agreement or the Plan of Distribution
applicable to
<PAGE>
any Borrower, or to our knowledge, any indenture, mortgage, deed of
trust or other loan agreement, each Borrower having advised us that it
is not a party to any indenture, mortgage, deed of trust or loan
agreement (other than the Credit Agreement), (d)]* require any consent
or approval of, or registration with, any New York State or Federal
governmental authority under any law, rule or regulation applicable to
any Borrower [or, (e) to our knowledge, conflict with any court or
administrative order or decree applicable to any Borrower].
Each of the Loan Documents has been duly executed and delivered
by or on behalf of each Borrower and constitutes the valid and binding
obligation of the each Borrower, enforceable against such Borrower in
accordance with its terms.
[To our knowledge, there is no pending or threatened action, suit
or proceeding before any court, governmental or regulatory authority,
agency, commission, or board of arbitration against any Borrower
which, if adversely determined, could have a materially adverse effect
on the financial condition or operations of such Borrower or on its
ability to perform its obligations under the Credit Agreement.]*
The transactions and arrangements contemplated by the Credit
Agreement do not violate Regulation U of the Board of Governors of the
Federal Reserve System.
To our knowledge, each Borrower, or to the extent such Borrower
is a series of a Trust or a Maryland Corporation, such Trust or
Maryland Corporation, is registered as open-end or closed-end
management investment company under the Investment Company Act of
1940.
--------
[* To be delivered only for Borrowers that are not parties to the
Existing Credit Agreement].
<PAGE>
Exhibit F
---------
FORM OF COMPLIANCE CERTIFICATE
Date:
----------
To each of the Banks referred to below
Bank One, NA
1 Bank One Plaza
Chicago, IL 60670
Attention: [insert name]
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of December 1, 2000, (as amended and in effect
from time to time, the "Credit Agreement"), by and among the Borrowers
party thereto, the Banks party thereto, The Bank of New York, as
syndication agent, State Street Bank and Trust Company, as
co-documentation agent, National Australia Bank Limited, as
co-documentation agent and Bank One, NA, as Administrative Agent.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Credit Agreement.
The undersigned hereby certifies to you that he/she is an
Authorized Signatory and that no Default or Event of Default, as to
the undersigned, has occurred and is continuing on the date hereof.
<PAGE>
The Asset Coverage Ratio of the undersigned as of the date hereof
is to 1.0.
[Borrower's name]
By:
--------------
Title:
--------------
<PAGE>
Exhibit G
---------
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated as of
------------
Reference is made to the Amended and Restated Credit Agreement,
dated as of December 1, 2000, (as from time to time amended and in
effect, the "Credit Agreement"), by and among the Borrowers party
thereto, the Banks party thereto, The Bank of New York, as syndication
agent, State Street Bank and Trust Company, as co-documentation agent,
National Australia Bank Limited, as co-documentation agent and Bank
One, NA, as administrative agent (in such capacity, the
"Administrative Agent"). Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in
the Credit Agreement.
___________________(the "Assignor") and ______________________
(the "Assignee") hereby agree as follows:
1. Assignment. Subject to the terms and conditions of this
Agreement and Acceptance, the Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes without
recourse to the Assignor, a [$ ] interest in and to the rights,
benefits, indemnities and obligations of the Assignor under the Credit
Agreement equal to [ %] in respect of the Assignor's Commitment
immediately prior to the Effective Date (as hereinafter defined).
2. Assignor's Representations. The Assignor (a) represents and
warrants that (i) it is legally authorized to enter into this
Assignment and Acceptance, (ii) as of the date hereof, its aggregate
Commitment Amount is [$ ], its Commitment Percentage is [ %], the
aggregate outstanding principal balance of its Loans equals [$ ] (in
each case after giving effect to the assignment contemplated hereby
but without giving effect to any contemplated assignments which have
not yet become effective), and (iii) immediately after giving effect
to all assignments which have not yet become effective, the Assignor's
Commitment
<PAGE>
Percentage will be sufficient to give effect to this Agreement and
Acceptance; (b) makes no representation or warranty, express or
implied, and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement or any of the other Loan Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any of the other Loan Documents or any other
instrument or document furnished pursuant thereto, other than that it
is the legal and beneficial owner of the interest being assigned by it
hereunder free and clear of any claim or encumbrance; (c) makes no
representation or warranty and assumes no responsibility with respect
to the financial condition of any Borrower, or the performance or
observance by any Borrower in respect of any of the Obligations or any
of its obligations under the Credit Agreement or any of the other Loan
Documents or any other instrument or document delivered or executed
pursuant thereto; and (d) if issued by the Borrowers pursuant to
Section 2.4 of the Credit Agreement, attaches hereto its Note.
[Pursuant to Section 2.4 of the Credit Agreement, the Assignee
requests that the Borrowers exchange the Assignor's Note for new Notes
payable to the Assignor and the Assignee as follows:
Notes Payable to Amounts of
the Order of: Notes
---------------------------------------
Assignor $
----------- --------
Assignee $
----------- --------
3. Assignee's Representations. The Assignee (a) represents and
warrants that (i) it is duly and legally authorized to enter into this
Agreement and Acceptance, (ii) the execution, delivery and performance
of this Assignment and Acceptance do not conflict with any provision
of law or of the charter or by-laws of the Assignee, or of any
agreement binding on the Assignee, (iii) all acts, conditions and
things required to be done and performed and to have occurred prior to
the execution, delivery and performance of this Assignment and
Acceptance, and to render the same the legal, valid and binding
obligation of the Assignee, enforceable against it in accordance with
its terms, have been done and performed and have occurred in due and
strict compliance
<PAGE>
with all applicable laws; (b) confirms that it has received a copy of
the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 5.1 thereof and
such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Assignment and Acceptance; (c) agrees that it will, independently and
without reliance upon the Assignor, the Administrative Agent or any
other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement;
(d) appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers
as are reasonably incidental thereto; (e) agrees that it will perform
in accordance with their terms all the obligations which by the terms
of the Credit Agreement are required to be performed by it as a Bank;
(f) makes the representation and warranty set forth in Section 8.12 of
the Credit Agreement; and (g) to the extent required by Section
2.13(b) of the Credit Agreement agrees to deliver the forms required
by Section 2.13(b) of the Credit Agreement.
4. Effective Date. The effective date for this Assignment and
Acceptance shall be [_____________ ] (the "Effective Date"). Following
the execution of this Assignment and Acceptance each party hereto
shall deliver its duly executed counterpart hereof to the
Administrative Agent for its consent. Schedule 1 to the Credit
Agreement shall thereupon be replaced as of the Effective Date by the
Schedule 1 annexed hereto.
5. Rights Under Credit Agreement. Upon such acceptance by the
Administrative Agent, from and after the Effective Date, (a) the
Assignee shall be a party to the Credit Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder, and (b) the Assignor shall, with
respect to that portion of its interest under the Credit Agreement
assigned hereunder, relinquish its rights and be released from its
obligations under the Credit Agreement; provided, however, that the
Assignor shall retain its rights to be indemnified pursuant to Section
8.3 of the Credit Agreement with respect to any claims or actions
arising prior to the Effective Date.
6. Payments. Upon such acceptance of this Assignment and
Acceptance by the Administrative Agent, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of
the rights and interests assigned hereby (including payments of
principal, interest, fees and other amounts) to the Assignee. The
Assignor and the Assignee shall make any appropriate adjustments in
payments for periods prior to the Effective Date by the Administrative
Agent or with respect to the making of this assignment directly
between themselves.
<PAGE>
7. Governing Law. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Counterparts. The Assignment and Acceptance may be executed in
any number of counterparts which shall together constitute but one and
the same agreement.
<PAGE>
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Assignment and Acceptance to be executed
on its behalf by its officer thereunto duly authorized, as of the date
first above written.
[ASSIGNOR]
By:
-----------------------------
Title:
[ASSIGNEE]
By:
-----------------------------
Title:
CONSENTED TO:
[Borrowers' names]
By:
-----------------------------
Title:
BANK ONE, NA, as Administrative Agent
By:
-----------------------------
Title:
<PAGE>
Exhibit H
---------
JOINDER Reference is made to the Amended and Restated Credit
Agreement (as amended and in effect from time to time, the "Credit
Agreement") dated as of December 1, 2000, by and among the Borrowers
party thereto, the Banks party thereto, The Bank of New York, as
syndication agent, State Street Bank and Trust Company, as
co-documentation agent, National Australia Bank Limited, as
co-documentation agent and Bank One, NA, as Administrative Agent.
All capitalized terms used in this Joinder which are defined in
the Credit Agreement shall have the meanings set forth therein unless
otherwise defined or the context otherwise requires.
Each of the undersigned hereby agrees that effective the date
hereof, it shall be a Borrower under the Credit Agreement. Each of the
undersigned agrees to be bound by the terms and conditions of the
Credit Agreement as a Borrower.
The undersigned hereby represents as to itself that as of the
date hereof and after giving effect hereto: (i) the representations
and warranties set forth in Article IV of the Credit Agreement with
respect to the Borrower are true and correct*; (ii) the Borrower is in
compliance in all material respects with all of the terms and
provisions set forth in the Credit Agreement on its part to be
observed or performed; and (iii) no Default or Event of Default with
respect to the Borrower shall have occurred and be continuing.
In connection herewith, a new Allocation Notice shall be
delivered.
THIS JOINDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned have executed this Joinder
this ___ day of ____________, _____.
[Name of Borrower]
--------
[* Reference is made to the Supplement to Schedule 4.9 attached
hereto.]
<PAGE>
By:
-------------------------
Title:
----------------------
