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CREDIT AGREEMENT
Dated as of December 21, 1999
among
AMERICAN CENTURY FUNDS,
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
CHASE SECURITIES, INC.,
as Lead Arranger and Book Manager
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TABLE OF CONTENTS
Page
Section 1. Definitions and Accounting Matters.....................................................................1
Section 1.1 Certain Defined Terms.......................................................................1
Section 1.2 Accounting Terms and Determinations.........................................................7
Section 2. Commitments, Loans, Notes and Prepayments..............................................................7
Section 2.1 Loans.......................................................................................7
Section 2.2 Procedure for Borrowings....................................................................7
Section 2.3 Changes of Commitments......................................................................7
Section 2.4 Commitment Fee..............................................................................8
Section 2.5 Lending Offices.............................................................................8
Section 2.6 Several Obligations; Remedies Independent...................................................8
Section 2.7 Notes.......................................................................................8
Section 2.8 Optional Prepayments........................................................................9
Section 2.9 Mandatory Prepayments.......................................................................9
Section 2.10 Extension of Commitment Termination Date....................................................9
Section 2.11 Designation of Additional Borrower; Amendments to Schedule I...............................10
Section 2.12 Swing Line Commitment......................................................................11
Section 2.13 Procedure for Swing Line Borrowing.........................................................11
Section 2.14 Refunding of Swing Line Loans..............................................................12
Section 3. Payments of Principal and Interest....................................................................13
Section 3.1 Repayment of Loans.........................................................................13
Section 3.2 Interest...................................................................................13
Section 4. Payments; Pro Rata Treatment; Computations; Etc.......................................................14
Section 4.1 Payments...................................................................................14
Section 4.2 Pro Rata Treatment.........................................................................15
Section 4.3 Computations...............................................................................15
Section 4.4 Minimum Amounts............................................................................15
Section 4.5 Certain Notices............................................................................16
Section 4.6 Non-Receipt of Funds by the Administrative Agent...........................................16
Section 4.7 Sharing of Payments, Etc...................................................................17
Section 4.8 Requirements of Law........................................................................18
Section 5. U.S. Taxes............................................................................................19
Section 6. Conditions Precedent..................................................................................21
Section 6.1 Initial Loan...............................................................................21
Section 6.2 Initial and Subsequent Loans...............................................................22
Section 7. Representations and Warranties........................................................................22
Section 7.1 Corporate Existence; Compliance with Law...................................................23
Section 7.2 Investment Company.........................................................................23
Section 7.3 Permission to Borrow.......................................................................23
Section 7.4 Financial Condition........................................................................23
Section 7.5 Litigation.................................................................................24
Section 7.6 No Default.................................................................................24
Section 7.7 No Breach..................................................................................24
Section 7.8 Action.....................................................................................24
Section 7.9 Approvals..................................................................................24
Section 7.10 Use of Credit..............................................................................24
Section 7.11 ERISA......................................................................................24
Section 7.12 Taxes......................................................................................25
Section 7.13 True and Complete Disclosure...............................................................25
Section 7.14 Accuracy of Information....................................................................25
Section 7.15 Indebtedness...............................................................................25
Section 7.16 Property and Liens.........................................................................25
Section 7.17 Blue Sky Registrations.....................................................................25
Section 7.18 Federal Regulations........................................................................26
Section 7.19 Apportionment Among Funds..................................................................26
Section 7.20 No Material Adverse Change.................................................................26
Section 7.21 Year 2000..................................................................................26
Section 8. Covenants of the Funds................................................................................26
Section 8.1 Financial Statements.......................................................................27
Section 8.2 Certificates; Other Information............................................................27
Section 8.3 Notices....................................................................................28
Section 8.4 Existence, Etc.............................................................................29
Section 8.5 Use of Proceeds............................................................................30
Section 8.6 Insurance..................................................................................30
Section 8.7 Prohibition of Fundamental Changes.........................................................30
Section 8.8 Limitations on Liens.......................................................................31
Section 8.9 Indebtedness...............................................................................32
Section 8.10 Dividend Payments..........................................................................32
Section 8.11 Asset Coverage; Borrowing Limits...........................................................32
Section 8.12 Lines of Business..........................................................................32
Section 8.13 Modifications of Certain Documents.........................................................32
Section 9. Events of Default.....................................................................................32
Section 10. The Administrative Agent.............................................................................35
Section 10.1 Appointment, Powers and Immunities.........................................................35
Section 10.2 Reliance by Administrative Agent...........................................................36
Section 10.3 Defaults...................................................................................36
Section 10.4 Rights as a Bank...........................................................................37
Section 10.5 Indemnification............................................................................37
Section 10.6 Non-Reliance on Administrative Agents and Other Banks......................................37
Section 10.7 Failure to Act.............................................................................38
Section 10.8 Resignation or Removal of Administrative Agent.............................................38
Section 11. Miscellaneous........................................................................................38
Section 11.1 Waiver.....................................................................................38
Section 11.2 Notices....................................................................................38
Section 11.3 Expenses, Etc..............................................................................39
Section 11.4 Amendments, Etc............................................................................40
Section 11.5 Successors and Assigns.....................................................................40
Section 11.6 Assignments and Participations.............................................................40
Section 11.7 Survival...................................................................................42
Section 11.8 Caption....................................................................................42
Section 11.9 Counterparts...............................................................................42
Section 11.10 Governing Law; Submission to Jurisdiction.................................................42
Section 11.11 Waiver of Jury Trial......................................................................43
Section 11.12 Treatment of Certain Information; Confidentiality.........................................43
Section 11.13 Limited Recourse..........................................................................44
SCHEDULE I - Borrowers & Allocations
SCHEDULE II - Commitments
SCHEDULE III - Custody Agreements
SCHEDULE IV - Distribution Agreements
SCHEDULE V - Investment Management Agreements
SCHEDULE VI - Shareholder Services Agreements
SCHEDULE VII - Specified Existing Affiliates
EXHIBIT 2.7(a) - Form of Note
EXHIBIT 2.11(a) - Form of Designation of New Borrowers
EXHIBIT 6.1(b) - Form of Opinion
EXHIBIT 11.6(b) - Form of Assignment and Acceptance
EXHIBIT 11.12(c) - Form of Confidentiality Agreement
CREDIT AGREEMENT, dated as of December 21, 1999 (this "Agreement")
among (i) each fund signatory hereto (each a "Fund" and, collectively, the
"Funds") on behalf of itself or on behalf of the series or portfolios of a Fund,
which series and portfolios are listed on Schedule I beside the name of the Fund
of which each series or portfolio is a series or portfolio (each such Fund
acting on behalf of itself and each such series or portfolio, a "Borrower" and,
collectively, the "Borrowers"); (ii) each of the lenders that is a signatory
hereto identified under the caption "BANKS" on the signature pages hereto and
each other lender that becomes a "Bank" after the date hereof pursuant to
Section 11.6(b) hereof (individually a "Bank" and, collectively, the "Banks");
and (iii) THE CHASE MANHATTAN BANK, a New York banking corporation, as agent for
the Banks (in such capacity, together with its successors in such capacity, the
"Administrative Agent").
WHEREAS, each Fund is an open-end registered investment company under
the Investment Company Act of 1940 for which the Investment Adviser (as defined
below) acts as an investment manager;
WHEREAS, each Borrower has requested the Banks to make Loans (as
defined below) severally and not jointly to each Borrower and to make available
to it a credit facility for the purposes and on the terms and conditions set
forth herein;
WHEREAS, each Bank acknowledges that each Borrower shall be liable
hereunder only for the Loans made to such Borrower hereunder and interest
thereon and for the fees and expenses associated therewith and as otherwise set
forth herein, and that, notwithstanding anything to the contrary herein, each
Borrower's obligations hereunder are several and not joint;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
Section 1. Definitions and Accounting Matters.
Section 1.1 Certain Defined Terms. As used herein, the following terms shall
have the following meanings (all terms defined in this Section 1.1 or in other
provisions of this Agreement in the singular to have the same meanings when used
in the plural and vice versa):
"Advisers Act" shall mean the Investment Advisers Act of 1940,
as amended.
"Applicable Lending Office" shall mean, for each Bank, the
"Lending Office" of such Bank (or of an affiliate of such Bank) on the signature
pages hereof or such other office of such Bank (or of an affiliate of such Bank)
as such Bank may from time to time specify to the Administrative Agent and the
Borrowers as the office by which its Loans are to be made and maintained.
"Applicable Margin" shall mean 0.50% per annum.
"Asset Coverage" shall mean, with respect to any Borrower, the
ratio that the value of the Total Assets of such Borrower bears to the aggregate
amount of Indebtedness of such Borrower.
"Bankruptcy Code" shall mean the Federal Bankruptcy Code of
1978, as amended from time to time.
"Business Day" shall mean any day on which commercial banks
are not authorized or required to close in New York ------------ City.
"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Chase" shall mean The Chase Manhattan Bank, together with its
successors.
"Closing Date" shall mean the first date upon which each of
the conditions precedent set forth in Section 6.1 hereof are satisfied.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Commission" shall mean the Securities and Exchange Commission
and any other similar or successor agency of the United States government
administering the Investment Company Act.
"Commitment" shall mean, as to each Bank, the obligation of
such Bank to make Loans in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount set opposite the name of such
Bank on Schedule II or, in the case of a Person that becomes a Bank pursuant to
an assignment permitted under Section 11.6(b) hereof, as specified in the
respective instrument of assignment pursuant to which such assignment is
effected (as the same may be reduced at any time or from time to time pursuant
to Section 2.3 hereof).
"Commitment Termination Date" shall mean the date which is 364
days following the date hereof or such earlier date on which the Commitments
shall terminate as provided herein, subject to extension as provided in Section
2.10 hereof.
"Contractual Obligation" shall mean, as to any Person, any
provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.
"Custody Agreement" shall mean, as to any Fund or each
Borrower, as applicable, the Custody Agreement(s) set forth in Schedule III.
"Default" shall mean an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
"Distribution Agreement" shall mean, as to any Fund or each
Borrower, as applicable, the Distribution Agreements set forth on Schedule IV
hereto.
"Dividend Payment" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any shares of any
class of stock of a Borrower or of any warrants, options or other rights to
acquire the same (or to make any payments to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market or equity value of the Borrower), but excluding dividends payable solely
in shares of such Borrower.
"Dollars" and "$" shall mean lawful money of the United States
of America.
"Eligible Lender" shall mean an entity that is a "bank" (as
defined in the Investment Company Act) but not an "affiliated person" or a
"principal underwriter" (each as defined in the Investment Company Act) of any
Borrower or any "affiliated person" of any such Person, including, without
limitation, the Investment Adviser.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or
business that is a member of any group of organizations (i) described in Section
414(b) or (c) of the Code of which a Fund is a member and (ii) solely for
purposes of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the Code, described in Section 414(m) or (o) of the Code of
which a Fund is a member.
"Event of Default" shall have the meaning assigned to such
term in Section 9 hereof.
"Federal Funds Rate" shall mean, for any day, the "offered
rate," as determined by Chase, for overnight federal funds, which rate is
determined from day to day and will be reasonably representative of the market
conditions at the time set.
"Financial Contracts" shall mean option contracts, options on
futures contracts, futures contracts, forward foreign currency exchange
contracts, options on foreign currencies, repurchase agreements, reverse
repurchase agreements, securities lending agreements, when-issued securities,
interest rate swap, cap, or collar agreements or similar arrangements between a
Fund for account of any Borrower and one or more financial institutions
providing for the transfer or mitigation of interest risks either generally or
under specific contingencies, and other similar arrangements entered into by a
Fund for account of any Borrower in the ordinary course of its business in
accordance with the investment objectives, policies, restrictions and
limitations of such Borrower then in effect.
"Fund Affiliate" shall mean an "affiliated person" of a Fund
as that term is used in the Investment Company Act. Notwithstanding the
foregoing, (a) no individual shall be a Fund Affiliate solely by reason of his
or her being a director, officer or employee of the Fund and (b) neither the
Administrative Agent nor any Bank shall be a Fund Affiliate.
"GAAP" shall mean generally accepted accounting principles, as
in effect from time to time.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory, or administrative functions of or
pertaining to government.
"Guarantee" shall mean a guarantee, an endorsement, a
contingent agreement to purchase or to furnish funds for the payment or
maintenance of, or otherwise to be or become contingently liable under or with
respect to, the Indebtedness, other obligations, net worth, working capital or
earnings of any Person, or a guarantee of the payment of dividends or other
distributions upon the stock or equity interests of any Person, or an agreement
to purchase, sell or lease (as lessee or lessor) Property, products, materials,
supplies or services primarily for the purpose of enabling a debtor to make
payment of such debtor's obligations or an agreement to assure a creditor
against loss, and including, without limitation, causing a bank or other
financial institution to issue a letter of credit or other similar instrument
for the benefit of another Person, but excluding endorsements for collection or
deposit in the ordinary course of business. The terms "Guarantee" and
"Guaranteed" used as a verb shall have a correlative meaning.
"Indebtedness" shall mean, for any Person: (a) obligations
created, issued or incurred by such Person for borrowed money (whether by loan,
the issuance and sale of debt securities or the sale of Property to another
Person subject to an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (b) obligations of such Person to
pay the deferred purchase or acquisition price of Property or services, other
than trade accounts payable (other than for borrowed money) arising, and accrued
expenses incurred, in the ordinary course of business so long as such trade
accounts payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person in respect of letters of credit or similar instruments issued or accepted
by banks and other financial institutions for account of such Person; (e)
Capital Lease Obligations of such Person; and (f) Indebtedness of others
Guaranteed by such Person.
"Investment Adviser" shall mean American Century Investment
Management, Inc.
"Investment Adviser Affiliate" shall mean an "affiliated
person" of the Investment Adviser as that term is used in the Investment Company
Act. Notwithstanding the foregoing, (a) no individual shall be an Investment
Adviser Affiliate solely by reason of his or her being a director, officer or
employee of the Investment Adviser and (b) neither the Administrative Agent nor
any Bank shall be an Investment Adviser Affiliate.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended.
"Investment Management Agreement" shall mean, as to each Fund
and each Borrower, the Investment Management Agreements set forth on Schedule V
hereto.
"Lien" shall mean, with respect to any Property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in respect of
such Property. For purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any Property that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement (other than an operating lease)
relating to such Property.
"Loans" shall mean the loans provided for in Section 2.1 hereof.
"Majority Banks" shall mean Banks having more than 51% of the
aggregate amount of the Commitments or, if the Commitments shall have
terminated, Banks holding more than 51% of the aggregate unpaid principal amount
of the Loans.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the Property, business, operations, financial condition, prospects,
liabilities or capitalization of a Fund or any Borrower, (b) the ability of a
Fund or any Borrower to perform its obligations hereunder and under the Notes,
(c) the validity or enforceability of this Agreement or of the Notes or (d) the
rights and remedies of the Banks and the Administrative Agent hereunder and
under the Notes.
"Multiemployer Plan" shall mean a multiemployer plan defined
as such in Section 3(37) of ERISA to which contributions have been made by a
Fund or any Borrower or any ERISA Affiliate and that is covered by Title IV of
ERISA.
"Net Asset Value" shall mean, with respect to any Borrower,
the total assets of such Borrower less the total liabilities of such Borrower,
all as determined in accordance with the methods used by such Borrower in
determining the net asset value of its shares and described in the Prospectus.
"Notes" shall have the meaning assigned to such term in
Section 2.7(a).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Person" shall mean any Borrower, any individual, corporation,
company, voluntary association, partnership, limited liability company, joint
venture, trust, unincorporated organization or government (or any agency,
instrumentality or political subdivision thereof).
"Plan" shall mean an employee benefit or other plan
established or maintained by a Fund or any ERISA Affiliate and that is covered
by Title IV of ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean a rate per annum equal to, in
the case of a Borrower, 2% plus the aggregate of the Federal Funds Rate and the
Applicable Margin as in effect from time to time, and, in the case of a Bank, 1%
plus the Federal Funds Rate.
"Property" shall mean any right or interest in or to property
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Prospectus" shall mean each Borrower's Prospectus and
Statement of Additional Information, as amended or supplemented from time to
time, filed with the Commission pursuant to Rule 497 under the Securities Act of
1933, as amended.
"Regulations A, T, U and X" shall mean, respectively,
Regulations A, T, U and X of the Board of Governors of the Federal Reserve
System (or any successor), as the same may be modified and supplemented and in
effect from time to time.
"Responsible Officer" shall mean the chairman, vice chairman,
president, vice president, treasurer, secretary, or assistant secretary of each
Fund, or, with respect to financial matters, the treasurer or assistant
treasurer of such Fund.
"Shareholder Services Agreement" shall mean, as to each Fund
or each Borrower, as applicable, the Shareholder Services Agreements set forth
on Schedule VI hereto.
"Specified Existing Fund Affiliate" shall mean each Person
that is a Fund Affiliate on the date hereof and is listed on Schedule VII hereto
under the caption "Specified Existing Fund Affiliates."
"Specified Existing Investment Adviser Affiliate" shall mean
each Person that is an Investment Adviser Affiliate on the date hereof and is
listed on Schedule VII hereto under the caption "Specified Existing Investment
Adviser Affiliates."
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person.
"Swing Line Commitment" shall mean the obligation of the Swing
Line Lender to make Swing Line Loans pursuant to Section 2.12 hereof in the
aggregate principal amount at any one time outstanding not to exceed $5,000,000.
"Swing Line Lender" shall have the meaning assigned to such
term in Section 2.12 hereof.
"Swing Line Loans" shall have the meaning assigned to such
term in Section 2.12 hereof.
"Swing Line Participation Amount" shall have the meaning
assigned to such term in Section 2.14(c) hereof.
"Total Assets" shall mean, at any time and with respect to any
Fund, all assets of such Borrower at such time that, in accordance with GAAP,
would be classified as assets on a balance sheet of such Borrower.
Section 1.2 Accounting Terms and Determinations. Except as otherwise expressly
provided herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all financial statements and certificates and reports as to financial matters
required to be furnished to the Bank hereunder shall be prepared, in accordance
with GAAP and the Investment Company Act.
Section 2. Commitments, Loans, Notes and Prepayments.
Section 2.1 Loans. Each Bank severally agrees, on the terms
and conditions of this Agreement, to make loans to the Funds in Dollars on
behalf of any Borrower (as designated in the applicable notice of borrowing by a
Fund) during the period from and including the Closing Date to but not including
the Commitment Termination Date in an aggregate principal amount at any one time
outstanding up to but not exceeding the amount of the Commitment of such Bank as
in effect from time to time. Subject to the terms and conditions of this
Agreement, during such period a Fund may, on behalf of a Borrower, borrow, repay
and reborrow the amount of the Commitments by means of Loans.
Section 2.2 Procedure for Borrowings. A Fund on behalf of a
Borrower may borrow under the Commitments on any Business Day provided that such
Fund shall give the Administrative Agent notice of each borrowing hereunder as
provided in Section 4.5(a) hereof. Each borrowing must be in an amount as set
forth in Section 4.4 hereof. Not later than 3:00 p.m. New York time on the date
specified for each borrowing hereunder, each Bank shall make available the
amount of the Loan or Loans to be made by it on such date to the Administrative
Agent, at any account designated by the Administrative Agent, in immediately
available funds, for account of the relevant Fund. The amount so received by the
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the relevant Fund for the benefit of such
Borrower by depositing the same, in immediately available funds, in an account
of the relevant Fund designated by the relevant Fund and maintained with Chase
at its principal office.
Section 2.3 Changes of Commitments.
(a) The aggregate amount of the Commitments shall be
automatically reduced to zero on the Commitment Termination Date.
(b) The Funds shall have the right at any time or from time to
time upon three Business Days' notice (i) so long as no Loans are outstanding,
to terminate the Commitments and (ii) to reduce the aggregate unused amount of
the Commitments; provided that (x) the Funds shall give notice of each such
termination or reduction as provided in Section 4.5(b) hereof and (y) each
partial reduction shall be in an aggregate amount at least equal to $5,000,000
(or a larger integral multiple of $1,000,000).
(c) The Commitments once terminated or reduced may not be
reinstated.
Section 2.4 Commitment Fee. The Funds shall pay to the
Administrative Agent for account of each Bank a commitment fee on the daily
average unused amount of such Bank's Commitment, for the period from and
including the date hereof to but not including the earlier of the date such
Commitment is terminated and the Commitment Termination Date, at a rate per
annum equal to 0.10%. Solely for the purpose of calculating the commitment fee,
Swing Line Loans will not be deemed a utilization of the aggregate Commitments
of all Banks. Accrued commitment fee shall be payable on each March 31, June 30,
September 30 and December 31 (beginning on the first of such dates to occur
after the date hereof) and on the earlier of the date the Commitments are
terminated and the Commitment Termination Date. The Funds shall allocate such
commitment fee among the Borrowers pro rata based on their respective Net Asset
Values as at the respective dates on which such commitment fee is due or
otherwise not in violation of applicable law.
Section 2.5 Lending Offices. The Loans made by each Bank shall
be made and maintained at such Bank's Applicable Lending Office.
Section 2.6 Several Obligations; Remedies Independent. The
failure of any Bank to make any Loan to be made by it on the date specified
therefor shall not relieve any other Bank of its obligation to make its Loan on
such date, but neither any Bank nor the Administrative Agent shall be
responsible for the failure of any other Bank to make a Loan to be made by such
other Bank, and (except as otherwise provided in Section 4.6 hereof) no Bank
shall have any obligation to the Administrative Agent or any other Bank for the
failure by such Bank to make any Loan required to be made by such Bank. The
amounts payable by the Borrowers at any time hereunder and under the Notes to
each Bank shall be a separate and independent debt and each Bank shall be
entitled to protect and enforce its rights arising out of this Agreement and the
Notes (subject, in the case of the right to accelerate, to Section 9 hereof),
and it shall not be necessary for any other Bank, or the Administrative Agent to
consent to, or be joined as an additional party in, any proceedings for such
purposes.
Section 2.7 Notes.
(a) Each Fund agrees that, upon the request of any Bank to the
Administrative Agent, each Fund will, at such Fund's expense, execute and
deliver to such Bank a promissory note of each Borrower evidencing the Loans of
such Bank to such Borrower, substantially in the form if Exhibit 2.7(a) with
appropriate insertions as to date and principal amount (a "Note").
(b) The date and amount of each Loan made by each Bank to a
Borrower, and each payment made on account of the principal thereof, shall be
recorded by such Bank on its books and, prior to any transfer of the applicable
Note, endorsed by such Bank on the schedule attached to such Note or any
continuation thereof; provided that the failure of such Bank to make any such
recordation (or any error in making any such recordation) or endorsement shall
not affect the obligations of a Borrower to make a payment when due of any
amount owing hereunder or under such Note in respect of the Loans evidenced
thereby.
(c) No Bank shall be entitled to have its Notes substituted or
exchanged for any reason, or subdivided for promissory notes of lesser
denominations, except in connection with a permitted assignment of all or any
portion of such Bank's Commitment, Loans and Notes pursuant to Section 11.6
hereof (and, if requested by any Bank, the Funds agree to so exchange any
Notes).
Section 2.8 Optional Prepayments. Subject to Section 4.4
hereof, a Borrower shall have the right to prepay Loans at any time or from time
to time, provided that such Borrower shall give the Administrative Agent notice
of each such prepayment as provided in Section 4.5(a) hereof (and, upon the date
specified in any such notice of prepayment, the amount to be prepaid shall
become due and payable hereunder).
Section 2.9 Mandatory Prepayments. If, at any time, (i) the
Asset Coverage of any Borrower shall fall below 300% or (ii) the aggregate
amount of Loans made to a Borrower exceed the limits provided in such Borrower's
Prospectus, then, within three Business Days thereafter, such Borrower shall
prepay Loans made to such Borrower to the extent necessary to ensure that (x)
the Asset Coverage is equal to or greater than 300% or (y) the aggregate amount
of Loans made to such Borrower then outstanding does not after such payments
exceed such limits as set forth in such Borrower's Prospectus or the Investment
Company Act, as the case may be.
Section 2.10 Extension of Commitment Termination Date.
(a) The Funds may, by notice to the Administrative Agent
(which shall promptly notify the Banks) given not less than 60 days and not more
the 90 days prior to the Commitment Termination Date then in effect (the
"Existing Commitment Termination Date"), request that the Banks extend the
Commitment Termination Date for an additional 364 days from the Existing
Commitment Termination Date. Each Bank, acting in its sole discretion, shall, by
notice (which shall be irrevocable) to the Funds and the Administrative Agent
given no earlier than the date that is 30 days prior to the Existing Commitment
Termination Date (herein, the "Consent Date") and no later than the date that is
three Business Days after the Consent Date, advise the Funds whether or not such
Bank agrees to such extension; provided that each Bank that determines not to
extend the Commitment Termination Date (a "Non-Extending Bank") shall notify the
Administrative Agent (which shall notify the Banks) of such fact promptly after
such determination (but in any event no later than the date three Business Days
after the Consent Date) and any Bank that does not advise the Funds on or prior
to the date three Business Days after the Consent Date that such Bank agrees to
such extension shall be deemed to be a Non-Extending Bank. The election of any
Bank to agree to such extension shall not obligate any other Bank to so agree.
(b) The Funds shall have the right on or before the Existing
Commitment Termination Date to request that the Administrative Agent and/or
Chase, in good faith, seek to replace each Non-Extending Bank with, and
otherwise add to this Agreement, one or more other banks (which may include any
Bank, each prior to the Existing Commitment Termination Date, an "Additional
Commitment Bank"), each of which Additional Commitment Banks shall have entered
into an agreement in form and substance satisfactory to the Funds and the
Administrative Agent pursuant to which such Additional Commitment Bank shall,
effective as of the Existing Commitment Termination Date, undertake a Commitment
specified therein and otherwise become obligated as a Bank hereunder (and, if
any such Additional Commitment Bank is already a Bank, its Commitment shall be
in addition to such Bank's Commitment hereunder on such date). The Funds shall
also have the right to replace each Non-Extending Bank in the same manner
described herein, except that any bank selected by the Funds must be approved by
the Administrative Agent (which approval shall not be unreasonably withheld).
(c) If (and only if) the total of the Commitments of the Banks
that have agreed so to extend the Commitment Termination Date and the additional
Commitments of the Additional Commitment Banks shall be at least 100% of the
aggregate amount of the Commitments in effect immediately prior to the date that
is three Business Days after the Consent Date, then, effective as of the
Existing Commitment Termination Date, (i) the Existing Commitment Termination
Date shall be extended to the date falling 364 days after the Existing
Commitment Termination Date (except that, if such date is not a Business Day,
such Commitment Termination Date as so extended shall be the next preceding
Business Day), (ii) each Additional Commitment Bank shall thereupon become a
"Bank" for all purposes of this Agreement and (iii) the Commitment of each
Non-Extending Bank shall terminate.
(d) Notwithstanding the foregoing clauses (a) through (c), the
extension of the Existing Commitment Termination Date shall not be effective
with respect to any Bank unless:
(i) no Default shall have occurred and be continuing on
each of the date of the notice requesting such
extension, on the Consent Date and on the Existing
Commitment Termination Date;
(ii) each of the representations and warranties made by
the Funds and Borrowers in Section 7 hereof shall be
true and complete on and as of each of the date of
the notice requesting such extension, the Consent
Date and the Existing Commitment Termination Date
with the same force and effect as if made on and as
of such date (or, if any such representation or
warranty is expressly stated to have been made as of
a specific date, as of such specific date); and
(iii) each Non-Extending Bank shall have been paid in full
by the Funds all amounts due to such Bank hereunder
on or before the Existing Termination Date.
Section 2.11 Designation of Additional Borrower; Amendments to
Schedule I.
(a) Other series of each Fund and other investment companies
registered under the Investment Company Act, in either case (a) which
have at least $2,000,000 in Total Assets, (b) are (I) equity funds,
(II) fixed income funds, or (III) any combination thereof, in each case
whether investing in domestic or foreign securities or any combination
thereof, and (c) for which the Investment Adviser or an Investment
Adviser Affiliate acts as the investment manager, may, with the prior
written consent of the Administrative Agent and each Bank, become
parties to this agreement in addition to those Borrowers listed in
Schedule I, and be deemed Borrowers for all purposes of this Agreement
by executing an instrument substantially in the form of Exhibit 2.11(a)
(with such changes therein as may be approved by the Administrative
Agent and the Banks), which instrument shall (x) have attached to it a
copy of this Agreement (as the same may have been amended) with a
revised Schedule I reflecting the participation of such additional
series or investment company and any prior revisions to Schedule I
effected in accordance with the terms hereof and (y) be accompanied by
the documents and instruments required to be delivered by the Borrowers
pursuant to Section 6 hereof, including, without limitation, an opinion
of counsel for the Funds substantially in the form of Exhibit 6.1(b).
(b) No series of any Fund or investment company shall be
admitted as a party to this Agreement as a Borrower unless at the time
of such admission and after giving effect thereto: (i) the
representations and warranties set forth in Section 7 hereof shall be
true and correct with respect to such Borrower; (ii) such Borrower
shall be in compliance in all material respects with all of the terms
and provisions set forth herein on its part to be observed or performed
at the time of the admission and after giving effect thereto; and (iii)
no Default or Event of Default with respect to such Borrower, nor any
event which with the giving of notice or expiration of any applicable
grace period or both would constitute such a Default or Event of
Default with respect to such Borrower, shall have occurred and be
continuing.
Section 2.12 Swing Line Commitment. Subject to the terms and
conditions hereof, Chase (in such capacity, the "Swing Line Lender")
agrees to make available to the Borrowers a portion of the credit
otherwise available under the Commitments from time to time by making
swing line loans ("Swing Line Loans") to the Borrowers in an aggregate
principal amount not to exceed at any one time outstanding the Swing
Line Commitment (notwithstanding that the Swing Line Loans outstanding
at any time, when aggregated with the Swing Line Lender's other
outstanding Loans hereunder, may exceed the Swing Line Lender's
Commitment then in effect); provided, however, that on the date of the
making of any Swing Line Loan and while any such Swing Line Loans are
outstanding, the sum of the aggregate principal amount of all
outstanding Loans and Swing Line Loans shall not exceed the total
Commitments. During the Commitment Period applicable to the Borrower,
the Borrower may use the Swing Line Commitment by borrowing, repaying
and reborrowing, all in accordance with the terms and conditions
hereof.
Section 2.13 Procedure for Swing Line Borrowing. Whenever a
Borrower desires that the Swing Line Lender make Swing Line Loans under
Section 2.12 hereof, the Borrower shall give the Swing Line Lender
irrevocable telephonic notice confirmed promptly in writing (which
telephonic notice must be received by the Swing Line Lender not later
than 3:00 P.M., New York City time, on the proposed date specified for
such borrowing), specifying the amount of each requested Swing Line
Loan. Each borrowing under the Swing Line Commitment shall be in an
amount equal to $50,000 or an integral multiple of $50,000 in excess
thereof. Not later than 5:00 P.M., New York City time, on the date
specified in a notice by the Borrower in respect of Swing Line Loans,
the Swing Line Lender shall make available to the Administrative Agent
for the account of the Borrower at the office of the Administrative
Agent specified in Section 11.2 hereof an amount in immediately
available funds equal to the amount of the Swing Line Loan to be made
by the Swing Line Lender. The proceeds of such Swing Line Loan will
then be made available to the Borrower on such date specified for such
borrowing by the Administrative Agent transferring by wire to the
custodian of and for the account of the Borrower the aggregate of the
amounts made available to the Administrative Agent by the Swing Line
Lender in immediately available funds.
Section 2.14 Refunding of Swing Line Loans.
(a) The Swing Line Lender, at any time in its sole and
absolute discretion may, and on the seventh day (or if such day is not
a Business Day, the next Business Day) after the date of such borrowing
with respect to any Swing Line Loans to the Borrower shall, on behalf
of the Borrower (and the Borrower hereby irrevocably directs the Swing
Line Lender to so act on its behalf), upon notice given by the Swing
Line Lender no later than 10:00 A.M., New York City time, on the
relevant refunding date, request each Bank to make, and each Bank
hereby agrees to make, a Loan to the Borrower, at the rate set forth in
Section 3.2 hereof, in the pro rata amount determined pursuant to
Section 4.2. hereof equal to the amount of such Swing Line Loans of the
Borrower (the "Refunded Swing Line Loans") outstanding on the date of
such notice, to repay the Swing Line Lender. Each Bank shall make the
amount of such Loan available to the administrative Agent at its office
set forth in Section 11.2 hereof in immediately available funds, no
later than 1:00 P.M., New York City time, on the date of such notice.
The proceeds of such Loans shall be distributed by the Administrative
Agent to the Swing Line Lender and immediately applied by the Swing
Line Lender to repay the Refunded Swing Line Loans. Effective on the
date such Loans are made, the portion of the Swing Line Loans so paid
shall no longer be outstanding as Swing Line Loans.
(b) The making of any Swing Line Loan hereunder shall be
subject to the satisfaction of the applicable conditions precedent
thereto set forth in Section 6 hereof (unless otherwise waived in
accordance with Section 11.4 hereof).
(c) If prior to the making of a Loan to the Borrower pursuant
to Section 2.14(a) hereof one of the events described in Sections 9(f)
or 9(g) hereof shall have occurred with respect to the Borrower, each
Bank severally, unconditionally and irrevocably agrees that it shall
purchase a participating interest in the applicable Swing Line Loans
("Unrefunded Swing Line Loans") in an amount equal to the amount of
Loans which would otherwise have been made by such Bank pursuant to
Section 2.14(a) hereof. Each Bank will immediately transfer to the
Administrative Agent, in immediately available funds, the amount of its
participation (the "Swing Line Participation Amount"), and the proceeds
of such participation shall be distributed by the Administrative Agent
to the Swing Line Lender in such amount as will reduce the amount of
the participating interest retained by the Swing Line in its Swing Line
Loans to the amount of the Loans which were to have been made by it
pursuant to Section 2.14(a) hereof.
(d) Whenever, at any time after the Swing Line Lender has
received from any Bank such Lender's Swing Line Participation amount,
the Swing Line Lender receives any payment on account of the Swing Line
Loans, the Swing Line Lender will distribute to such Bank its Swing
Line Participation Amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Bank's pro rata
portion of such payment if such payment is not sufficient to pay the
principal of and interest on all Swing Line Loans then due); provided,
however, that in the event that such payment received by the Swing Line
Lender is required to be returned, such Bank will return to the Swing
Line Lender any portion thereof previously distributed to it by the
Swing Line Lender.
(e) Each Bank's obligation to make the Loans referred to in
Section 2.14(a) hereof and to purchase participating interests pursuant
to Section 2.14(c) hereof shall be absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, (i)
any setoff, counterclaim, recoupment, defense or other right which such
Bank may have against the Swing Line Lender or any other Person for any
reason whatsoever; (ii) the occurrence or continuance of a Default or
an Event of Default or the failure to satisfy any of the other
conditions specified in Section 6 hereof, (iii) any adverse change in
the condition (financial or otherwise) of the Borrower; (iv) any breach
of this Agreement or any Note by the Borrower or the Bank, or (v) any
other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
Section 3. Payments of Principal and Interest.
Section 3.1 Repayment of Loans. Each Borrower hereby severally
and unconditionally, but neither jointly nor jointly and severally
promises to pay to the Administrative Agent for account of each Bank
the principal of each Loan made by such Bank to such Borrower, and each
Loan shall mature, on the earlier of (a) the date that is 30 calendar
days after the date such Loan was made and (b) the Commitment
Termination Date.
Section 3.2 Interest.
(a) Each Borrower hereby promises severally and
unconditionally, but neither jointly nor jointly and severally, to pay
to the Administrative Agent for account of each Bank interest on the
unpaid principal amount of each Loan (which, for purposes of this
Section 3.2, shall include each Swing Line Loan) made by such Bank to
such Borrower, for the period from and including the date of such Loan
to but excluding the date such Loan shall be paid in full, at a rate
equal to the Federal Funds Rate (as in effect from time to time) plus
the Applicable Margin.
(b) Notwithstanding the foregoing, each Borrower hereby
promises to pay to the Administrative Agent for the account of each
Bank interest at the Post-Default Rate on any principal of any Loan
made by such Bank to such Borrower and on any other amount payable by
such Borrower in respect of such Loan hereunder or under the applicable
Note held by such Bank to or for account of such Bank, that shall not
be paid to the Administrative Agent for the benefit of the Banks in
full when due (whether at stated maturity, by acceleration, by
mandatory prepayment or otherwise), for the period from and including
the due date thereof to but excluding the date the same is paid in
full.
(c) Accrued interest on each Loan shall be payable in arrears
upon the payment or prepayment thereof (but only on the principal
amount so paid or prepaid); except that interest payable at the
Post-Default Rate pursuant to Section 3.2(b) hereof shall be payable
from time to time on demand. Promptly after the determination of any
interest rate provided for herein or any change therein, the
Administrative Agent shall give notice thereof to the Banks.
Section 4. Payments; Pro Rata Treatment; Computations; Etc.
Section 4.1 Payments.
(a) Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by a
Borrower under this Agreement and the Notes, shall be made in Dollars,
in immediately available funds, without deduction, set-off or
counterclaim, to the Administrative Agent (Account No. 323-525369, or
any other account designated by the Administrative Agent), not later
than 2:00 p.m. New York time on the date on which such payment shall
become due (each such payment made after such time on such due date to
be deemed to have been made on the next succeeding Business Day),
provided that if a new Loan to a Borrower is to be made by any Bank on
a date such Borrower is to repay any principal of an outstanding Loan
made by such Bank to such Borrower, such Bank shall apply the proceeds
of such new Loan to the payment of the principal to be repaid and only
an amount equal to the difference between the principal to be borrowed
and the principal to be repaid shall be made available by such Bank to
the Administrative Agent as provided in Section 2.2 hereof or paid by
such Borrower to the Administrative Agent pursuant to this Section 4.1,
as the case may be.
(b) Each Borrower shall, at the time of making each payment
under this Agreement or any Note for the account of any Bank, specify
to the Administrative Agent (which shall so notify the intended
recipient(s) thereof) the identity of such Borrower, the Loans or other
amounts payable by such Borrower hereunder to which such payment is to
be applied (and in the event that such Borrower fails to so specify, or
if an Event of Default has occurred and is continuing, the
Administrative Agent may distribute such payment for account of such
Borrower to the Banks for application in such manner as it or the
Majority Banks, subject to Section 4.2 hereof, may determine to be
appropriate).
(c) Each payment received by the Administrative Agent under
this Agreement or any Note for account of any Bank shall be paid by the
Administrative Agent promptly to such Bank, in immediately available
funds, for account of such Bank's Applicable Lending Office for the
Loan or other obligation in respect of which such payment is made.
(d) If the due date of any payment under this Agreement or any
Note would otherwise fall on a day that is not a Business Day, such
date shall be extended to the next succeeding Business Day, and
interest shall be payable for any principal so extended for the period
of such extension.
Section 4.2 Pro Rata Treatment. Except to the extent otherwise
provided herein:
(a) each borrowing from the Banks under Section 2.1 hereof
shall be made from the Banks, each payment of commitment fee under
Section 2.4 hereof shall be made for account of the Banks, and each
termination or reduction of the amount of the Commitments under Section
2.3 hereof shall be applied to the respective Commitments of the Banks,
pro rata according to the amounts of their respective Commitments;
(b) each payment or prepayment of principal of Loans by a
Borrower shall be made for account of the Banks pro rata in accordance
with the respective unpaid principal amounts of the Loans held by them;
and
(c) each payment of interest on Loans by a Borrower shall be
made for account of the Banks pro rata in accordance with the amounts
of interest on such Loans then due and payable to the respective Banks.
Section 4.3 Computations.
(a) Interest on Loans and commitment fees shall be computed on
the basis of a 360-day year for the actual days elapsed.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on each Borrower and the Banks in the absence
of manifest error. The Administrative Agent shall, at the request of a
Borrower, deliver to such Borrower a statement showing the quotations
used by the Administrative Agent in determining any interest rate
pursuant to Section 3.2 hereof.
(c) During the period commencing on the effectiveness of this
Agreement and ending on January 31, 2000, inclusive, if a Lender's cost
of funds exceeds the Federal Funds Rate, then the Federal Funds Rate
shall be adjusted upwards in an amount, not to exceed 1.5% per annum,
equal to the excess of such Lender's cost of funding over the Federal
Funds Rate. If any Lender becomes entitled to claim any such additional
amounts, it shall promptly notify the Borrowers (with a copy to the
Administrative Agent) of the event by reason of which it has become so
entitled by providing a certificate (which shall be conclusive absent
manifest error) setting forth in reasonable detail the basis for the
claim for additional amounts, the amounts required to be paid by the
Borrowers to such Lender, and the computations made by such Lender to
determine the amounts; provided that such Lender shall not be required
to disclose any confidential information. Failure or delay on the part
of any Lender to demand compensation pursuant hereto shall not
constitute a waiver of such Lender's right to demand such compensation;
provided that a Lender claiming such compensation pursuant to this
Section 4.3(c) must have made its demand for such compensation on or
before March 31, 2000.
Section 4.4 Minimum Amounts. Each borrowing shall be in an
aggregate amount at least equal to $500,000 or a larger integral
multiple of $100,000. Each partial prepayment of principal of Loans
shall be in an aggregate amount at least equal to $100,000 or a larger
integral multiple of $100,000.
Section 4.5 Certain Notices.
(a) Notices by a Borrower to the Administrative Agent of
borrowings and optional prepayments of Loans shall be irrevocable and
shall be effective only if received by the Administrative Agent not
later than 12:00 noon New York time on the date of the relevant
borrowing or prepayment. Each such notice of borrowing or optional
prepayment shall specify the Borrower for whose benefit such borrowing
or prepayment, or on whose behalf such borrowing or prepayment is to be
made, the Loans to be borrowed or prepaid and the amount (subject to
Section 4.4 hereof) of each Loan to be borrowed or prepaid and the date
of borrowing or optional prepayment (which shall be a Business Day).
(b) Notices by a Borrower to the Administrative Agent of
terminations or reductions of the Commitments shall be irrevocable and
shall be effective only if received in a timely manner, as set forth in
Section 2.3(b) hereof, by the Administrative Agent. Each such notice of
termination or reduction shall specify the amount of the Commitments to
be terminated or reduced.
(c) The Administrative Agent shall promptly notify the Banks
of the contents of each such notice.
Section 4.6 Non-Receipt of Funds by the Administrative Agent.
Unless the Administrative Agent shall have been notified by a Bank or a
Borrower (the "Payor") prior to the date on which the Payor is to make
payment to the Administrative Agent of (in the case of a Bank) the
proceeds of a Loan to be made by such Bank hereunder or (in the case of
a Borrower) a payment to the Administrative Agent for account of one or
more of the Banks hereunder (such payment being herein called the
"Required Payment"), which notice shall be effective upon receipt, that
the Payor does not intend to make the Required Payment to the
Administrative Agent, the Administrative Agent may assume that the
Required Payment has been made and may, in reliance upon such
assumption (but shall not be required to), make the amount thereof
available to the intended recipient(s) on such date; and, if the Payor
has not in fact made the Required Payment to the Administrative Agent,
the recipient(s) of such payment shall, on demand, repay to the
Administrative Agent the amount so made available together with
interest thereon (such interest to be, in the case of a Bank, the
Federal Funds Rate and, in the case of a Borrower, as set forth in
Section 3.2(a) hereof) in respect of each day during the period
commencing on the date (the "Advance Date") such amount was so made
available by the Administrative Agent until the date the Administrative
Agent recovers such amount and, if such recipient(s) shall fail
promptly to make such payment, the Administrative Agent shall be
entitled to recover such amount, on demand, from the Payor, together
with interest as aforesaid, provided that if neither the recipient(s)
nor the Payor shall return the Required Payment to the Administrative
Agent within three Business Days of the Advance Date, then,
retroactively to the Advance Date, the Payor and the recipient(s) shall
each be obligated to pay interest on the Required Payment as follows:
(a) if the Required Payment shall represent a payment to be
made by a Borrower to the Banks, such Borrower and the recipient(s)
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment at the Post-Default Rate
(without duplication of the obligation of such Borrower under Section
3.2 hereof to pay interest on the Required Payment at the Post-Default
Rate), it being understood that the return by the recipient(s) of the
Required Payment to the Administrative Agent shall not limit such
obligation of such Borrower under said Section 3.2 to pay interest at
the Post-Default Rate in respect of the Required Payment; and
(b) if the Required Payment shall represent proceeds of a Loan
to be made by the Banks to a Borrower, such Borrower and the Payor
shall each be obligated retroactively to the Advance Date to pay
interest in respect of the Required Payment pursuant to the rate
specified in Section 3.2 hereof (without duplication of the obligation
of such Borrower under Section 3.2 hereof to pay interest on the
Required Payment), it being understood that the return by such Borrower
of the Required Payment to the Administrative Agent shall not limit any
claim such Borrower may have against the Payor in respect of such
Required Payment.
Section 4.7 Sharing of Payments, Etc.
(a) Each Fund agrees that, in addition to (and without
limitation of) any right of set-off, banker's lien or counterclaim a
Bank may otherwise have, each Bank shall be entitled, at its option (to
the fullest extent permitted by law), to set off and apply any deposit
(general or special, time or demand, provisional or final), or other
indebtedness, held by it for the credit or account of a Borrower at any
of its offices, in Dollars or in any other currency, against any
principal of or interest on any of such Bank's Loans to such Borrower
or any other amount payable by such Borrower to such Bank hereunder,
that is not paid when due (regardless of whether such deposit or other
indebtedness are then due to such Borrower), in which case it shall
promptly notify such Borrower and the Administrative Agent thereof,
provided that such Bank's failure to give such notice shall not affect
the validity thereof.
(b) If any Bank shall obtain from a Borrower payment of any
principal of or interest on any Loan owing to it or payment of any
other amount under this Agreement through the exercise of any right of
set-off, banker's lien or counterclaim or similar right or otherwise
(other than from the Administrative Agent as provided herein), and, as
a result of such payment, such Bank shall have received a greater
percentage of the principal of or Interest on the Loans made to such
Borrower or such other amounts then due to such Bank hereunder by such
Borrower than the percentage received by any other Bank, it shall
promptly purchase from such other Banks participations in (or, if and
to the extent specified by such Bank, direct interests in) such Loans
or such other amounts, respectively, owing to such other Banks (or in
interest due thereon, as the case may be) in such amounts, and make
such other adjustments from time to time as shall be equitable, to the
end that all the Banks shall share the benefit of such excess payment
(net of any expenses that may be incurred by such Bank in obtaining or
preserving such excess payment) pro rata in accordance with the unpaid
principal of and/or interest on such Loans or such other amounts,
respectively, owing to each of the Banks. To such end all the Banks
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must
otherwise be restored.
(c) Each Fund agrees that any Bank so purchasing such a
participation (or direct interest) may exercise all rights of set-off,
banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Bank were a direct holder of Loans or
other amounts (as the case may be) owing to such Bank in the amount of
such participation (or direct interest).
(d) Nothing contained herein shall require any Bank to
exercise any such right or shall affect the right of any Bank to
exercise, and retain the benefits of exercising, any such right with
respect to any other indebtedness or obligation of a Borrower. If,
under any applicable bankruptcy, insolvency or other similar law, any
Bank receives a secured claim in lieu of a set-off to which this
Section 4.7 applies, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Banks entitled under this Section 4.7
to share in the benefits of any recovery on such secured claim.
Section 4.8 Requirements of Law.
(a) If any Bank shall have determined that the adoption of or
any change in any applicable law, rule, or regulation, or any change in
any applicable law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by such Bank or any corporation
controlling such Bank with any request or directive regarding capital
adequacy (whether or not having the force of law) from any such
authority, central bank, or comparable authority made subsequent to the
date hereof shall have the effect of reducing the rate of return on
such Bank's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Bank or such
corporation could have achieved but for such adoption, change, or
compliance (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy) by an amount determined by
such Bank, in its reasonable discretion, to be material, then from time
to time, each Borrower shall promptly pay to such Bank such additional
amount or amounts as will compensate such Bank for such reduction.
(b) If any Bank becomes entitled to claim any additional
amounts pursuant to this Section 4.8, it shall promptly notify the
Borrowers (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled by providing a certificate
setting forth in reasonable detail the basis for the claim for
additional amounts, the amounts required to be paid by the Borrowers to
such Bank, and the computations made by such Bank to determine the
amounts; provided that such Bank shall not be required to disclose any
confidential information. Such certificate as to any additional amounts
payable pursuant to this Section 4.8(b) submitted by such Bank to the
Borrowers (with a copy to the Administrative Agent) shall be conclusive
in the absence of manifest error. The agreements in this Section 4.8
shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder. No Borrower shall be
responsible to compensate such Bank for additional amounts attributable
to another Borrower's Loans.
(c) Failure or delay on the part of any Bank to demand
compensation pursuant to this Section 4.8 shall not constitute a waiver
of such Bank's right to demand such compensation; provided that the
Borrowers shall not be required to compensate a Bank pursuant to this
Section 4.8 for any increased costs or reductions incurred more than
270 days prior to the date that such Bank notifies the Borrower of the
change in the applicable law, rule, or regulation giving rise to such
increased costs or reductions and of such Bank's intention to claim
compensation therefore; provided further that, if the change in the
applicable law, rule, or regulation giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above
shall be extended to include the period of retroactive effect thereof.
Section 5. U.S. Taxes.
(a) All payments made by any Borrower under this Agreement or
any Note shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp
or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding all present and
future income taxes and franchise taxes (imposed in lieu of net income
taxes) imposed on the Administrative Agent or any Bank as a result of a
present or former connection between the Administrative Agent or such
Bank and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the Administrative
Agent or such Bank having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or
any Note). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") are
required to be withheld from any amounts payable to the Administrative
Agent or any Bank hereunder or under any Note, the amounts so payable
to the Administrative Agent or such Bank shall be increased to the
extent necessary to yield to the Administrative Agent or such Bank
(after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified on
this Agreement, provided, however, that a Borrower shall not be
required to increase any such amounts payable to any Bank that is not
organized under the laws of the U.S. or a state thereof if such Bank
fails to comply with the requirements of paragraph (b) of this Section.
Whenever any Non-Excluded Taxes are payable by a Borrower, as promptly
as possible thereafter, such Borrower shall send to the Administrative
Agent for its own account or for the account of such Bank, as the case
may be, a certified copy of an original official receipt received by
such Borrower showing payment thereof. If a Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Administrative agent the required receipts or
other required documentary evidence, such Borrower shall indemnify the
Administrative Agent and the Banks for any incremental taxes, interest
or penalties that may become payable by the Administrative Agent or any
Bank as a result of any such failure. The agreements in this Section
shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
(b) Each Bank that is not incorporated under the laws of the
U.S. or a state thereof shall:
(i) deliver to the Investment Adviser and the
Administrative Agent (A) two duly completed copies of
U.S. Internal Revenue Service Form 1001 or 4224, or
successor applicable form, as the case may be, and
(B) and Internal Revenue Service From W-8 or W-9, or
successor applicable form, as the case may be;
(ii) deliver to the Investment Adviser and the
Administrative Agent two further copies of any such
form or certification on or before the date that any
such form or certification expires or becomes
obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the Investment Adviser; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may
reasonably be requested by the Investment Adviser or
the Administrative Agent;
unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Bank from duly
completing and delivering any such form with respect to it and such
Bank so advises the Investment Adviser and the Administrative Agent.
Such Bank shall certify (A) in the case of a Form 1001 or 4224, that it
is entitled to receive payments under this Agreement without deduction
or withholding of any U.S. federal income taxes and (B) in the case of
a Form W-8 or W-9, that it is entitled to an exemption from U.S. backup
withholding tax. Each Person that shall be subject to an assignment or
participation pursuant to Section 11.6 hereof shall, upon the
effectiveness of the related transfer, be required to provide all of
the forms and statements required pursuant to this Section 5, provided
that in the case of a Person subject to a participation, such Person
shall furnish all required forms and statements to the Bank from which
the related participation shall have been purchased.
(c) If any Bank shall receive a credit or refund from a taxing
authority with respect to, and actually resulting from, an amount of
Non-Excluded Taxes actually paid to or on behalf of such Bank by a
Borrower (a "Tax Credit"), such Bank shall promptly pay to such
Borrower the amount so received with respect to the Tax Credit. If such
Tax Credit is not received by such Bank in the form of cash, such Bank
shall pay the amount of such Tax Credit not later than the time
prescribed by applicable law for filing the return (including
extensions of time) for such Bank's taxable period which includes the
period in which such Bank receives the economic benefit of such Tax
Credit. In any event, the amount of any Tax Credit payable by a Bank to
a Borrower pursuant to this clause (c) shall not exceed the actual
amount of cash refunded to, or credits received and usable (in
accordance with the actual practices then in use by such Bank) by, such
Bank from a taxing authority. In determining the amount of any Tax
Credit, a Bank may use such apportionments and attribution rules as
such bank customarily employs in allocating taxes among its various
operations and income sources and such determination shall be
conclusive absent manifest error. Each Borrower further agrees promptly
to return to a Bank the amount paid to such Borrower with respect to a
Tax Credit by such Bank if such Bank is caused to repay, or is
determined to be ineligible for, a Tax Credit for such amount.
Notwithstanding anything to the contrary contained herein, each
Borrower hereby acknowledges and agrees that (i) neither the
Administrative Agent nor any Bank shall be obligated to provide such
Borrower with details of the tax position of the Administrative Agent
or such Bank (as the case may be) and (ii) such Borrower shall have no
right to inspect any records (including tax returns) of the
Administrative Agent or such Bank (as the case may be).
Section 6. Conditions Precedent.
Section 6.1 Initial Loan. The obligation of any Bank to make
its initial Loan hereunder is subject to the conditions precedent
(which conditions precedent apply to and shall be satisfied by the
Borrowers severally) that the Administrative Agent shall have received
the following documents (with, in the case of clauses (a), (b), (c),
(d), and (e) below, sufficient counterparts or copies, as the case may
be, for each Bank), each of which shall be satisfactory to the
Administrative Agent (and to the extent specified below, to each Bank)
in form and substance:
(a) Related Agreements. (i) True and correct copies, certified
as to authenticity by each Fund, of the most recent Prospectus for each
Borrower, the current registration statement for each Borrower, the
most recent annual and semi-annual financial reports for each Borrower,
(ii) with respect to the Shareholder Services Agreement for each
Borrower, the Custody Agreement for each Borrower, the Distribution
Agreement for each Borrower, and the Investment Management Agreement of
each Fund in which the assets of each Borrower are invested, certified
copies of any amendments thereto that have an effective date subsequent
to December 18, 1998 or, alternatively, a certificate on behalf of each
Borrower that no such amendments exist and that such documents, as in
effect as of December 18, 1998, are still in full force and effect, and
(iii) such other documents or instruments as may be reasonably
requested by the Administrative Agent, including, without limitation, a
copy of any debt instrument, security agreement or other material
contract to which any Borrower may be a party.
(b) Corporate Documents. Certified copies of the charter and
by-laws (or equivalent documents) of each Fund and of all corporate
authority for each Fund (including, without limitation, board of
director resolutions) with respect to the execution, delivery and
performance of this Agreement and the Notes and each other document to
be delivered by each Fund from time to time in connection herewith and
the Loans hereunder (and the Administrative Agent and each Bank may
conclusively rely on such certificate until it receives notice in
writing from each Fund to the contrary).
(c) Incumbency Certificate. A certificate of each Fund, dated
the Closing Date, as to the incumbency and signature of the officers of
such Fund executing this Agreement or any Notes executed by the
Secretary or any Assistant Secretary of such Fund, satisfactory in form
and substance to the Administrative Agent.
(d) Opinion of Counsel to the Funds. An opinion, dated the
date hereof, of Charles C.S. Park, Assistant General Counsel of
American Century Investment Management, Inc., counsel to the Funds and
each Borrower, substantially in the form of Exhibit 6.1(b) (and the
Funds and each Borrower hereby instruct such counsel to deliver such
opinion to the Banks and the Administrative Agent).
(e) Credit Agreement. Executed copies of this Agreement and
all related documents in form and substance reasonably satisfactory to
each Bank.
(f) Notes. If requested pursuant to Section 2.7(a) hereof, the
Notes, duly completed and executed for each Bank.
(g) Other Documents. Such other documents as the
Administrative Agent or any Bank or special New York counsel to Chase
may reasonably request.
The obligation of any Bank to make its initial Loan hereunder is also
subject to the payment by the Funds of such fees as the Funds shall
have agreed to pay or deliver to any Bank or the Administrative Agent
in connection herewith, including, without limitation, the reasonable
fees and expenses of Dechert Price & Rhoads, special New York counsel
to Chase, in connection with the negotiation, preparation, execution
and delivery of this Agreement and the Notes and the making of the
Loans hereunder (to the extent that statements for such fees and
expenses have been delivered to the Funds). The Funds shall allocate
such fees and expenses among the Borrowers pro rata according to their
respective Net Asset Values as at the date on which such fees and
expenses are paid or otherwise in compliance with law.
Section 6.2 Initial and Subsequent Loans. The obligation of
the Banks to make any Loan to a Borrower upon the occasion of each
borrowing hereunder (including the initial borrowing) is subject to the
further conditions precedent that both immediately prior to the making
of such Loan and also after giving effect thereto and to the intended
use thereof:
(a) no Default shall have occurred and be continuing;
(b) the representations and warranties made by each Fund on
behalf of itself and each Borrower in Section 7 hereof shall be true
and complete on and as of the date of the making of such Loan with the
same force and effect as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made
as of a specific date as of such specific date);
(c) the Banks shall be satisfied that the Loans and the use of
proceeds thereof in respect of each Borrower comply in all respects
with Regulation U. To the extent required by Regulation U, the
Administrative Agent shall have received a copy of either (i) FR Form
U-1, duly executed and delivered by each Fund on behalf of each
Borrower and completed for delivery to each Bank, in form acceptable to
the Administrative Agent, or (ii) a current list of "margin stock" (as
defined in Regulation U) from each Borrower, in form acceptable to the
Administrative Agent and in compliance with Section 221.3(c)(2) of
Regulation U; and
(d) (i) Asset Coverage of at least 300% of any Borrower as
provided by and in accordance with the Investment Company Act (provided
that "total assets," as used in the Investment Company Act, shall not
include any encumbered assets of a Borrower) and (ii) borrowing limits
in such Borrower's Prospectus are not exceeded.
Each notice of borrowing by a Fund on behalf of itself or a Borrower
hereunder shall constitute a certification by such Fund to the effect
set forth in the preceding sentence (both as of the date of such notice
and, unless such Fund otherwise notifies the Administrative Agent prior
to the date of such borrowing, as of the date of such borrowing).
Section 7. Representations and Warranties.
Each Fund, on behalf of itself and each Borrower, hereby
represents and warrants to the Administrative Agent and the Banks that
(it being agreed that each Fund represents and warrants only to matters
with respect to itself and each Borrower that is a part of such Fund,
and each Borrower represents only to matters with respect to itself):
Section 7.1 Corporate Existence; Compliance with Law. Each
Fund: (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization; (b)
has all requisite corporate or other power, and has all material
governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed
to be conducted; (c) is qualified to do business and is in good
standing in all jurisdictions where failure so to qualify could (either
individually or in the aggregate) have a Material Adverse Effect; (d)
has no Subsidiaries; and (e) is in compliance of all laws, including,
but not limited to, the Investment Company Act and the Securities Act
of 1933, as amended.
Section 7.2 Investment Company.
(a) Each Fund is registered with the Commission under the
Investment Company Act as an open-end management investment company,
and no order of suspension or revocation of such registration has been
issued or proceedings therefor initiated or threatened by the
Commission.
(b) Each Borrower is in substantial compliance with all
investment objectives, policies, restrictions and limitations set forth
or incorporated by reference in the Prospectus and applicable to such
Borrower.
(c) The Investment Adviser is the primary investment adviser
to each Borrower and Fund and, to the best knowledge of each Fund, the
Investment Adviser is duly registered as an investment adviser under
the Advisers Act.
Section 7.3 Permission to Borrow. Each Borrower is permitted
to borrow hereunder pursuant to the limits and restrictions set forth
in its Prospectus.
Section 7.4 Financial Condition. For each Borrower, the
statement of assets and liabilities as of such Borrower's most recently
ended fiscal year for which annual reports have been prepared and the
related statements of operations and of changes in net assets for the
fiscal year ended on such date, copies of which financial statements,
certified by the independent public accountants for each Borrower, or
the Fund acting on behalf of each such Borrower, as the case may be,
have heretofore been delivered to each Bank, fairly present, in all
material respects, the financial position of such Borrower as of such
date and the results of its operations for such period, in conformity
with GAAP (as consistently applied).
Section 7.5 Litigation. There are no legal or arbitral
proceedings, or any proceedings by or before any governmental or
regulatory authority or agency, now pending or (to the knowledge of any
Fund or any Borrower) threatened against that Fund or Borrower (a) with
respect to this Agreement and each of the Notes or any of the
transactions contemplated hereby or thereby, or (b) that, if adversely
determined could (either individually or in the aggregate) have a
Material Adverse Effect.
Section 7.6 No Default. No Default or Event of Default has
occurred and is continuing.
Section 7.7 No Breach. None of the execution and delivery of
this Agreement and the Notes, the consummation of the transactions
herein contemplated or compliance with the terms and provisions hereof
will conflict with or result in a breach of, or require any consent
under, the charter or by-laws of any Fund, or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any material agreement or
instrument to which any Fund is a party or by which it or any of its or
any Borrower's Property is bound or to which it is subject, or
constitute a default under any such agreement or instrument.
Section 7.8 Action. Each Fund has all necessary corporate
power, authority and legal right to execute, deliver and perform its
obligations under this Agreement and the Notes and to borrow hereunder;
the execution, delivery and performance by each Fund of this Agreement
and the Notes and the ability to borrow hereunder have been duly
authorized by all necessary corporate action on its part (including,
without limitation, any required shareholder approvals); and this
Agreement has been duly and validly executed and delivered by each Fund
and constitutes, and each of the Notes when executed and delivered for
value will constitute, its legal, valid and binding obligation,
enforceable against each Fund in accordance with its terms, except as
such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application
of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 7.9 Approvals. No authorizations, approvals or
consents of, and no filings or registrations with, any governmental or
regulatory authority or agency, or any securities exchange, are
necessary for the execution, delivery or performance by each Fund of
this Agreement or the Notes or for the legality, validity or
enforceability hereof or thereof.
Section 7.10 Use of Credit. No part of the proceeds of any
Loan hereunder will be used in a manner that violates Regulation U.
Section 7.11 ERISA. No Fund has any ERISA Affiliates or has
had any ERISA Affiliates at any time. No Fund maintains, contributes to
or participates in, nor at any time has any Fund maintained,
contributed to or participated in, any Plan or Multiemployer Plan.
Section 7.12 Taxes. Each Fund and each Borrower have filed all
Federal income tax returns and all other material tax returns that are
required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by a Fund or any
such Borrower. The charges, accruals and reserves on the books of each
Fund in respect of taxes and other governmental charges are, in the
opinion of each Fund, adequate. No Fund has given or been requested to
give a waiver of the statute of limitations relating to the payment of
any Federal, state, local and foreign taxes or other impositions.
Section 7.13 True and Complete Disclosure. No Prospectus, as
of the date thereof, contains any untrue statement of material fact or
omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Since the date of each such Prospectus, there has not been
any change that would require a Fund to supplement or amend its
Prospectus.
Section 7.14 Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of each Fund
and each Borrower in writing to the Administrative Agent or any Bank
for purposes of or in connection with this Agreement or any transaction
contemplated hereby (in each case, as amended, superseded, supplemented
or otherwise modified with the knowledge of the Administrative Agent or
such Bank) is, and all other such factual information hereafter
furnished by or on behalf of each Fund and each Borrower to the
Administrative Agent or any Bank (in each case, as amended, superseded,
supplemented or otherwise modified with the knowledge of the
Administrative Agent or such Bank) will be, true and accurate in every
material respect on the date as of which such information is dated or
certified, and to the extent such information was furnished to the
Administrative Agent or such Bank heretofore or contemporaneously, as
of the date of execution and delivery of this Agreement by the
Administrative Agent or such Bank, and such information is not, or
shall not be, as the case may be, incomplete by omitting to state any
material fact necessary to make such information not misleading.
Section 7.15 Indebtedness. As of the date hereof, neither any
Fund nor any Borrower has any Indebtedness other than (a) current
liabilities consisting of expenses payable and payables for securities
purchased and (b) obligations under Financial Contracts.
Section 7.16 Property and Liens. No Lien exists upon any
Property of any Fund except for Liens permitted by Section 8.6 hereof.
Section 7.17 Blue Sky Registrations. There are in full force
and effect orders of effective securities registration for the
securities of each Borrower in each state in which such securities are
sold or are offered for sale and required to be so registered.
Section 7.18 Federal Regulations. If requested by any Bank or
the Administrative Agent from time to time, each of the Funds and each
Borrower will furnish to the Administrative Agent and each Bank a
statement and current list of the assets of each Borrower in conformity
with the requirements of FR Form U-1 referred to in said Regulation U.
Other than the furnishing of such statement and such list, no filing or
other action is required under the provision of Regulations T, U or X
in connection with the execution and delivery of the Agreement and the
making of the Loans hereunder.
Section 7.19 Apportionment Among Funds. Borrowings of Loans by
a Fund for the benefit of any Borrower will be allocated by such Fund
among the Borrowers on a fair and equitable basis not in violation of
applicable law and in accordance with the procedures established prior
to the date of this Agreement by the board of directors of the Fund, as
such procedures may be amended from time to time.
Section 7.20 No Material Adverse Change. For each Borrower,
since the date of the statement of assets and liabilities for the most
recently ended fiscal year for which annual reports have been prepared
for such Borrower, there has been no development or event which has had
or could reasonably be expected to have a Material Adverse Effect with
respect to such Borrower.
Section 7.21 Year 2000. Each Fund (i) has to the best of its
knowledge completed (x) any reprogramming required to permit the proper
functioning, in and following the year 2000, of critical computer
systems and equipment containing imbedded microchips that such Fund
uses in connection with its operations, and if applicable the
operations of each investment series or portfolio thereof that is a
Borrower (the "Systems"), and (y) the testing of the Systems, as so
reprogrammed, and (ii) has obtained assurances from its material
service providers and those of any portfolio or series of such Fund
that is a Borrower (in each case, excluding the Administrative Agent
and the Banks) that any programming required to permit the proper
functioning in and following the year 2000 of the critical computer
systems of such material service provider, and the testing of such
systems, as reprogrammed, has been completed. The cost to each Fund,
and each investment series or portfolio thereof that is a Borrower, of
such reprogramming and testing will not result in an Event of Default
or a Material Adverse Effect.
Section 8. Covenants of the Funds.
Each Fund for itself and each Borrower for itself hereby
covenants and agrees with the Banks and the Administrative Agent that,
so long as any Commitment or Loan is outstanding to it or (in the case
of any Fund) any Borrower that is a part of such Fund and until payment
in full of all amounts payable by it or (in the case of any Fund) any
Borrower that is a part of such Fund hereunder (it being agreed that
each Fund covenants only to matters with respect to itself and each
Borrower that is a part of such Fund, and each Borrower covenants only
to matters with respect to itself):
Section 8.1 Financial Statements. Each Fund or Borrower, as
applicable, shall deliver to the Administrative Agent (with copies for
each Bank):
(a) as soon as available and in any event within 75 days after
the end of each fiscal year of such Borrower, a statement of assets and
liabilities of that Borrower as of the end of such fiscal year, a
statement of operations for such fiscal year, a statement of changes in
net assets for such fiscal year and the preceding fiscal year, a
portfolio of investments as of the end of such fiscal year and the per
share and other data for such fiscal year prepared in accordance with
GAAP (as consistently applied) and all regulatory requirements, and all
presented in a manner acceptable to the Securities and Exchange
Commission or any successor or analogous Governmental Authority and
acceptable to PricewaterhouseCoopers LLP, Deloitte & Touche LLP, or any
other independent certified public accountants of recognized standing;
(b) as soon as available and in any event within 60 days after
the close of the first six-month period of each fiscal year of such
Borrower, a statement of assets and liabilities as of the end of such
six-month period, a statement of operations for such six-month period,
a statement of changes in net assets for such six-month period and a
portfolio of investments as of the end of such six-month period, all
prepared in accordance with regulatory requirements and all certified
(subject to normal year-end adjustments) as to fairness of
presentation, GAAP (as consistently applied) and consistency by a
Responsible Officer; and
(c) as soon as available, but in any event not later than 10
days after the end of each fiscal quarter of each Borrower, the net
asset value sheet of such Borrower as of the end of such quarter, in
the form and detail similar to those customarily prepared by each of
the Fund's management for internal use and reasonably satisfactory to
the Administrative Agent, certified by a Responsible Officer as being
fairly stated in all material respects; provided, however, that if any
Borrower has Loans outstanding, such Borrower shall provide each Bank
with (i) such net asset value sheet described above in this Section 8.1
and (ii) a certificate of a Responsible Officer showing in reasonable
detail the calculations supporting such Borrower's compliance with
Section 6.2(d) hereof, within three Business Days after the end of each
calendar week so long as any Loans to such Borrower remain outstanding;
all such financial statements shall be complete and correct in all
material respects and shall be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods
reflected therein and with prior periods (except as approved by such
accountants or officer, as the case may be, and disclosed therein).
Section 8.2 Certificates; Other Information. Each Fund or
Borrower, as applicable, shall deliver to the Administrative Agent
(with copies for each Bank):
(a) concurrently with the delivery of the financial statements
referred to in Sections 8.1(a), (b), and (c) hereto and the quarterly
report in Section 8.2(c) hereof, a certificate of a Responsible Officer
stating that (i) to the best of such Responsible Officer's knowledge,
such Borrower during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition,
contained in this Agreement and the Notes to be observed, performed or
satisfied by it, and (ii) no Default or Event of Default has occurred
and is continuing except as specified in such certificate;
(b) within five days after the same are sent, copies of all
financial statements and reports which each Borrower generally sends to
its investors, and within five Business Days after the same are filed,
copies of all financial statements and material reports which each
Borrower may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(c) as soon as available, but in any event not later than 10
days after the end of each fiscal quarter, a certificate of a
Responsible Officer (i) stating that the list of each Borrower's
portfolio securities attached to such certificate is true and correct
and (ii) showing in reasonable detail the calculations supporting such
Borrower's compliance with Section 6.2(d) hereof; and
(d) promptly, such additional financial and other information
as any Bank may from time to time reasonably request, including, but
not limited to, copies of all changes to the Prospectus and
registration statement.
Section 8.3 Notices. Each Fund or Borrower, as the case may
be, shall promptly give notice to the Administrative Agent and each
Bank of
(a) the occurrence of any Default or Event of Default with
respect to such Borrower;
(b) any (i) default or event of default under any Contractual
Obligation of such Borrower or such Fund or (ii) litigation,
investigation or proceeding which may exist at any time between any
Fund and/or any Borrower and any Governmental Authority, which in
either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting such Borrower in
which the amount reasonably determined to be at risk is $1,000,000 or
more and not covered by insurance or in which injunctive or similar
relief is sought;
(d) any change in any of the parties to any Custody Agreement
relating to any Fund;
(e) any material change in such Borrower's Prospectus or
registration statement; and
(f) any development or event which could reasonably be
expected to have a Material Adverse Effect on any such Borrower.
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action such Fund or
such Borrower proposes to take with respect thereto.
Section 8.4 Existence, Etc. Each Fund will:
(a) preserve and maintain its legal existence and all of its
(and each Borrower's) material rights, privileges, licenses and
franchises;
(b) comply with the requirements of all applicable laws,
rules, regulations and orders of governmental or regulatory authorities
(including, without limitation, the Investment Company Act and all
rules and regulations promulgated thereunder, and Regulations U and X
and other applicable regulations of the Board of Governors of the
Federal Reserve System) if failure to comply with such requirements
could reasonably be expected to have a Material Adverse Effect;
(c) pay and discharge, on its own behalf and on behalf of each
Borrower, all material taxes, assessments and governmental charges or
levies imposed on the income, profits or Property of it or of such
Borrower prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is
being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained;
(d) pay and discharge, on its own behalf and on the behalf of
each Borrower, at or before maturity or before they become delinquent,
as the case may be, all its obligations of whatever nature, except
where (i) the amount or validity thereof is currently being contested
in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of such
Borrower, as the case may be, or (ii) the lack of timely payment
thereof could not reasonably be expected to have a Material Adverse
Effect;
(e) preserve and maintain its status as a registered, open-end
management investment company under the Investment Company Act;
(f) maintain at all times its current primary custodians
responsible for the safekeeping of portfolio securities, unless the
prior written consent of the Banks has been obtained, provided, that
such consent is not required (i) of any Bank which is also such primary
custodian, or (ii) for a Borrower to change its primary custodian to a
bank or trust company organized under the laws of the United States or
a political subdivision thereof having assets of at least
$10,000,000,000 and a long-term debt or deposit rating of at least A
from Standard & Poor's Ratings Group or A2 from Moody's Investor
Services, Inc.;
(g) keep, and cause each of the Borrowers to keep, adequate
records and books of account, in which complete entries will be made in
accordance with GAAP and the Investment Company Act and regulations
promulgated thereunder reflecting all financial transactions of each
Fund and each Borrower;
(h) cause each Borrower to comply in all material respects
with all investment objectives, policies, restrictions and limitations
set forth or incorporated by reference in the Prospectus and applicable
to such Borrower; and
(i) permit representatives of (i) the Administrative Agent,
upon its own discretion or at the reasonable request of any Bank, and
(ii) upon the occurrence and during the continuance of an Event of
Default, any Bank to visit and inspect any of such Borrower's
properties and examine and make abstracts from any of its books and
records during normal business hours and to discuss the business,
operations, properties, and financial and other condition of such
Borrower with officers and employees of such Borrower and with its
independent certified public accountants; provided, that, unless a
Default or an Event of Default shall have occurred and be continuing,
the Administrative Agent shall provide the Borrowers with five Business
Days' prior notice of such visit and shall only conduct such visit once
a year.
Section 8.5 Use of Proceeds. A Fund will use the proceeds of
the Loans made hereunder for the benefit of any Borrower solely to
finance temporarily the repurchase or redemption of shares of such
Borrower at the request of the holders of such shares, pending the
orderly sale of portfolio securities held by such Borrower, in
compliance with all applicable legal and regulatory requirements,
including, without limitation, Regulations U and X, the Securities Act
of 1933, as amended, and the Securities Exchange Act of 1934, as
amended, and the respective rules and regulations promulgated
thereunder; provided that neither the Administrative Agent nor any Bank
shall have any responsibility as to the use of any of such proceeds.
Section 8.6 Insurance. Each Fund will keep insured by
financially sound and reputable insurers all Property of a character
usually insured by investment companies engaged in the same or similar
business against loss or damage of the kinds and in the amounts
required to be maintained by the Funds pursuant to Section 17(g) of the
Investment Company Act and Rule 17g-1 promulgated thereunder.
Section 8.7 Prohibition of Fundamental Changes. Each Fund will
not and will not permit any Borrower to:
(a) enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution) (a "Merger");
(b) acquire any business or Property from, or capital stock
of, or be a party to any acquisition of, any Person (an "Acquisition")
except for purchases of Property in the ordinary course of business and
securities purchased for account of the Borrowers and not in violation
of the terms and conditions of this Agreement (including, without
limitation, Section 8.4(f) hereof);
(c) convey, sell, lease, transfer or otherwise dispose of, in
one transaction or a series of transactions (a "Transfer"), all or a
substantial part of its business or Property, whether now owned or
hereafter acquired except for assets and securities sold or disposed of
in the ordinary course of business, including purchase and sale
transactions performed under rule 17a-7 of the Investment Company Act;
(d) have any Subsidiaries;
(e) maintain, contribute to or participate in any Plan or
Multiemployer Plan; or
(f) change or modify in any material respect any fundamental
investment objective, policy or investment restriction or limitation of
such Borrower described in its Prospectus.
Notwithstanding the foregoing clauses (a), (b) and (c) of this Section
8.7, a Fund may consummate a Merger, an Acquisition or a Transfer with
a Specified Existing Fund Affiliate provided that:
(i) no Default shall have occurred and be continuing at the
time of such Merger, Acquisition or Transfer or would result therefrom,
(ii) in connection with such Merger, Acquisition or Transfer,
such Fund shall deliver to the Administrative Agent a certificate of a
senior officer of such Fund stating that the Asset Coverage of each
Borrower shall not be reduced as a result thereof,
(iii) the Merger, Acquisition or Transfer is with another
Borrower and the Investment Adviser is the investment manager to the
entity surviving such Merger, Acquisition or Transfer, and
(iv) the Administrative Agent shall have received an opinion
of counsel for such Fund, satisfactory to the Administrative Agent in
form and substance, as to such Merger, Acquisition or Transfer being in
compliance with the terms of this Agreement.
Section 8.8 Limitations on Liens. No Fund will, nor will a
Fund permit any Borrower to, create, incur, assume or suffer to exist
any Lien upon any of its Property, whether now owned or hereafter
acquired, except:
(a) Liens imposed by any governmental authority for taxes,
assessments or charges not yet due or that are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of such Borrower in accordance with
GAAP;
(b) Liens created pursuant to a Custody Agreement; and
(c) Liens securing indebtedness permitted under Section 8.9
hereof and any other Liens created, incurred, assumed or suffered to
exist in compliance with the Prospectus of such Borrower which are not
otherwise prohibited, and for which the Administrative Agent has been
given prior written notice.
Section 8.9 Indebtedness. A Fund will not, nor will it permit
any Borrower to, create, incur or suffer to exist any Indebtedness
except (a) Indebtedness to the Banks hereunder and (b) obligations
under Financial Contracts.
Section 8.10 Dividend Payments. A Fund will not, and will not
permit any Borrower to, declare or make any Dividend Payment at any
time if, either before or after giving effect thereto, (a) a Default
shall have occurred and be continuing (provided that, unless any
amounts payable hereunder have been declared due and payable pursuant
to Section 9 hereof, nothing contained in this clause (a) shall limit
the ability of any Borrower to distribute each year all of its net
investment income (including net realized capital gains) so that it
will not be subject to tax (including corporate and/or excise taxes)
under the Code) or (b) such Dividend Payment would be in violation of
the Investment Company Act.
Section 8.11 Asset Coverage; Borrowing Limits. A Fund will not
permit (i) the Asset Coverage for any Borrower to be less than 300% at
any time, provided, that "total assets," as used in the definition of
"asset coverage" in the Investment Company Act, shall not include any
encumbered assets of such Borrower, or (ii) any Borrower to violate the
limits on borrowing as set forth in such Borrower's Prospectus.
Section 8.12 Lines of Business. No Fund will engage in any
line or lines of business activity other than that of an open-end
management investment company.
Section 8.13 Modifications of Certain Documents. Unless as
otherwise required by law, without the prior consent of the
Administrative Agent (with the approval of the Majority Banks), such
consent and approval not to be unreasonably withheld, no Borrower will
consent to any modification, supplement or waiver of any of the
provisions of (a) its Articles of Incorporation, (b) its By-Laws or (c)
its Custody Agreement.
Section 9. Events of Default.
If one or more of the following events (herein called "Events
of Default") shall occur and be continuing:
(a) A Fund or Borrower shall (i) default in the payment when
due (whether at stated maturity or upon mandatory or optional
prepayment) of any principal of any Loan or (b) default in the payment
when due of any interest on any Loan, any fee or any other amount
payable by it hereunder and such default shall have continued
unremedied for three or more days; or
(b) A Fund or Borrower shall default in the payment when due
(after any applicable grace period) of any amount aggregating
$1,000,000 or more under any Financial Contract; or any event specified
in any Financial Contract shall occur if the effect of such event is to
cause, or (with the giving of any notice or the lapse of time or both)
to permit, termination or liquidation payment or payments aggregating
$1,000,000 or more to become due; or
(c) Any representation, warranty or certification made or
deemed made herein (or in any modification or supplement hereto) by a
Borrower, or any certificate furnished to any Bank or the
Administrative Agent pursuant to the provisions hereof, shall prove to
have been false or misleading as of the time made or furnished in any
material respect; or
(d) A Fund or Borrower shall default in the performance of any
of its obligations under any of Sections 8.3(a) and 8.7 through 8.13
hereof; or such Fund or Borrower shall default in the performance of
any of its other obligations in this Agreement and such default shall
continue unremedied for a period of thirty or more days after notice
thereof to such Fund or Borrower by the Administrative Agent or any
Bank (through the Administrative Agent); or
(e) A Fund or a Borrower shall admit in writing its inability
to, or be generally unable to, pay its debts as such debts become due;
or
(f) A Fund or a Borrower shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner or liquidator of itself or of all or a substantial
part of its Property, (ii) make a general assignment for the benefit of
its creditors, (iii) commence a voluntary case under the Bankruptcy
Code, (iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment
of debts, (v) fail to controvert in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code or (vi) take any corporate
action for the purpose of effecting any of the foregoing; or
(g) A proceeding of law shall be commenced, without the
application or consent of a Fund or a Borrower, in any court of
competent jurisdiction, seeking (i) its reorganization, liquidation,
dissolution, arrangement or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a receiver,
custodian, trustee, examiner, liquidator or the like of such Borrower
or of all or any substantial part of its Property or (iii) similar
relief in respect of such Fund or Borrower under any law relating to
bankruptcy, insolvency, reorganization, winding up, or composition or
adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 or more days; or an order for relief against such
Fund or Borrower shall be entered in an involuntary case under the
Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money of
$250,000 or more in the aggregate shall be rendered by one or more
courts, administrative tribunals or other bodies having jurisdiction
against a Borrower and the same shall not be discharged (or provision
shall not be made for such discharge), or a stay of execution thereof
shall not be procured within 60 days from the date of entry thereof and
such Borrower shall not, within said period of 60 days, or such longer
period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during
such appeal; or
(i) Except as expressly permitted by Section 8.7 hereof, any
Person, or related Persons constituting a "group" for purposes of
Section 13(d) of the Securities Exchange Act of 1934, as amended,
(other than a Specified Existing Fund Affiliate) shall have acquired
beneficial ownership, directly or indirectly, of more than 33% of the
outstanding voting stock of a Fund or a Borrower; or
(j) Any Person, or related Persons constituting a "group" for
purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended, (other than a Specified Existing Investment Adviser Affiliate)
shall have acquired beneficial ownership, directly or indirectly, of
more than 33% of the outstanding voting stock or other ownership
interests of the Investment Adviser; or
(k) A Fund or a Borrower's registration under the Investment
Company Act shall lapse or be suspended (or proceedings for such
purpose shall have been instituted); or
(l) A Fund or a Borrower shall fail to comply with the
Investment Company Act in a manner which could be reasonably expected
to have a Material Adverse Effect; or
(m) A Borrower shall fail to comply with its investment
policies and restrictions as set forth in its Prospectus in a manner
which could be reasonably expected to have a Material Adverse Effect;
or
(n) unless consented to by the Banks, the Investment Adviser
or an Investment Adviser Affiliate shall cease to act as the sole
investment adviser to a Fund or a Borrower, or the Investment Adviser
shall cease to be registered as an investment adviser under the
Advisers Act; or
(o) since the date of the statement of assets and liabilities
for the most recently ended fiscal year for which such annual reports
have been prepared for a Borrower, there has been a development or
event which has had or could reasonably be expected to have a Material
Adverse Effect with respect to such Borrower;
THEREUPON: (i) in the case of an Event of Default other than one
referred to in clause (f) or (g) of this Section 9 with respect to a
Borrower, the Administrative Agent may and, upon request of the
Majority Banks, will, by notice to such Borrower, terminate the
Commitments and/or declare the principal amount then outstanding of,
and the accrued interest on, the Loans and all other amounts payable by
such Borrower hereunder and under the Notes to be forthwith due and
payable, whereupon such amounts shall be immediately due and payable
without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by such Borrower; and (ii) in
the case of the occurrence of an Event of Default referred to in clause
(f) or (g) of this Section 9 with respect to a Borrower, the
Commitments shall automatically be terminated and the principal amount
then outstanding of, and the accrued interest on, the Loans and all
other amounts payable by such Borrower hereunder and under the Notes
shall automatically become immediately due and payable without
presentment demand, protest or other formalities of any kind, all of
which are hereby expressly waived by such Borrower.
Notwithstanding any other provision herein to the contrary, Defaults
and Events of Default shall have the following results:
(i) a Default or Event of Default with respect to one
Borrower shall not constitute a Default or Event of
Default to any other Borrower;
(ii) except as set forth in clause (iii) below, a Default
or Event of Default with respect to a Fund acting on
behalf of one or more Borrowers shall constitute a
Default or Event of Default, as the case may be, only
to the Borrower or Borrowers implicated in, or
affected by, the act or omission causing such Default
or Event of Default;
(iii) a Fund Default or Fund Event of Default with respect
to a Fund acting on behalf of one or more Borrowers
shall constitute a Default or Event of Default, as
the case may be, to each Borrower issued by such Fund
for which such Fund Default or Fund Event of Default
may in the reasonable discretion of the
Administrative Agreement be reasonably expected to
have a Material Adverse Effect on each such
Borrower's ability to perform its obligations under
this Agreement and the Notes; and
(iv) an Event of Default of the type described in
paragraph (n) of this Section 9 shall constitute an
Event of Default to all Borrowers.
"Fund Event of Default" shall mean an Event of Default with respect to
a Fund (A) of any of the types described in paragraphs (b), (f), (g),
(h) or (k) of this Section 9, or (B) arising from such Fund's failure
to comply with the covenants set forth in Sections 8.3, 8.4 and 8.5
hereof. "Fund Default" shall mean any of the covenants giving rise to
Fund Events of Default, whether or not any requirement for the giving
of notice, the lapse of time, or both, or any other condition, has been
satisfied.
Section 10. The Administrative Agent
Section 10.1 Appointment, Powers and Immunities. Each Bank
hereby appoints and authorizes the Administrative Agent to act as its
agent hereunder with such powers as are specifically delegated to the
Administrative Agent by the terms of this Agreement, together with such
other powers as are reasonably incidental thereto. The Administrative
Agent (which term as used in this sentence and in Section 10.5 and the
first sentence of Section 10.6 hereof shall include reference to its
affiliates and its own and its affiliates' officers, directors,
employees and agents):
(a) shall have no duties or responsibilities except those
expressly set forth in this Agreement, and shall not by reason of this
Agreement be a trustee for any Bank;
(b) shall not be responsible to the Banks for any recitals,
statements, representations or warranties contained in this Agreement,
or in any certificate or other document referred to or provided for in,
or received by any of them under, this Agreement, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, any Note or any other document referred to or provided
for herein or for any failure by a Borrower or any other Person to
perform any of its obligations hereunder or thereunder;
(c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder;
(d) shall not be responsible for any action taken or omitted
to be taken by it hereunder or under any other document or instrument
referred to or provided for herein or in connection herewith, except
for its own gross negligence or willful misconduct; and
(e) shall not be under any obligation to any Bank to ascertain
or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other
documents related to this Agreement, or to inspect the properties,
books or records of any Fund or any Borrower.
The Administrative Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it in good faith. The
Administrative Agent may deem and treat the payee of a Note as the
holder thereof for all purposes hereof unless and until a notice of the
assignment or transfer thereof shall have been filed with the
Administrative Agent, together with the consent of the Funds to such
assignment or transfer (to the extent required by Section 11.6(b)
hereof).
Section 10.2 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely upon any certification,
notice or other communication (including, without limitation, any
thereof by telephone, telecopy, telegram or cable) reasonably believed
by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. As to any matters not expressly
provided for by this Agreement, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting,
hereunder in accordance with instructions given by the Majority Banks,
and such instructions of the Majority Banks and any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
Section 10.3 Defaults. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of a Default
unless the Administrative Agent has received notice from a Bank or a
Borrower specifying such Default and stating that such notice is a
"Notice of Default". In the event that the Administrative Agent
receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Banks. The
Administrative Agent shall (subject to Section 10.7 hereof) take such
action with respect to such Default as shall be directed by the
Majority Banks, provided that, unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may
(but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem
advisable in the best interest of the Banks except to the extent that
this Agreement expressly requires that such action be taken, or not be
taken, only with the consent or upon the authorization of the Majority
Banks or all of the Banks.
Section 10.4 Rights as a Bank. With respect to its Commitment
and the Loans made by it, Chase (and any successor acting as
Administrative Agent) in its capacity as a Bank hereunder shall have
the same rights and powers hereunder as any other Bank and may exercise
the same as though it were not acting as the Administrative Agent, and
the term "Bank" or "Banks" shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity.
Chase (and any successor acting as Administrative Agent) and its
affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to, make investments in and generally engage
in any kind of banking, trust or other business with the Funds (and any
of their affiliates) as if it were not acting as the Administrative
Agent, and Chase (and any such successor) and its affiliates may accept
fees and other consideration from the Funds for services in connection
with this Agreement or otherwise without having to account for the same
to the Banks.
Section 10.5 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 11.3
hereof, but without limiting the obligations of the Funds under said
Section 11.3) ratably in accordance with the aggregate principal amount
of the Loans held by the Banks (or, if no Loans are at the time
outstanding, ratably in accordance with their respective Commitments),
for any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
and nature whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent arising out of or by reason of any
investigation in or in any way relating to or arising out of this
Agreement or any other documents contemplated by or referred to herein
or the transactions contemplated hereby or the enforcement of any of
the terms hereof or of any such other documents, provided that no Bank
shall be liable for any of the foregoing to the extent they arise from
the gross negligence or willful misconduct of the party to be
indemnified.
Section 10.6 Non-Reliance on Administrative Agents and Other
Banks. Each Bank expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or
warranties to it and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of the Funds or
Borrowers, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Bank. Each Bank agrees that it has,
independently and without reliance on the Administrative Agent or any
other Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Borrowers and
decision to enter into this Agreement and 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 analysis and
decisions in taking or not taking action under this Agreement. The
Administrative Agent shall not be required to keep itself informed as
to the performance or observance by the Borrowers of this Agreement or
any other document referred to or provided for herein or to inspect the
Properties or books of the Borrowers. Except for notices, reports and
other documents and information expressly required to be furnished to
the Banks by the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to provide any Bank
with any credit or other information concerning the affairs, financial
condition or business of the Borrowers (or any of their affiliates)
that may come into the possession of the Administrative Agent or any of
its affiliates.
Section 10.7 Failure to Act. Except for action expressly
required of the Administrative Agent hereunder, the Administrative
Agent shall in all cases be fully justified in failing or refusing to
act hereunder unless it shall receive further assurances to its
satisfaction from the Banks of their indemnification obligations under
Section 10.5 hereof against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such
action.
Section 10.8 Resignation or Removal of Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any
time by giving notice thereof to the Banks and the Funds, and the
Administrative Agent may be removed at any time with or without cause
by the Majority Banks. Upon any such resignation or removal, the
Majority Banks shall have the right to appoint a successor
Administrative Agent with the consent of the Funds, which consent shall
not be unreasonably withheld or delayed. If no successor Administrative
Agent shall have been so appointed by the Majority Banks and shall have
accepted such appointment within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Majority
Banks' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Banks and with the consent
of the Funds, which consent shall not be unreasonably withheld or
delayed, appoint a successor Administrative Agent, that shall be a bank
that has an office in New York, New York with a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges 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 or removal hereunder as Administrative Agent, the
provisions of this Section 10 shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it
was acting as the Administrative Agent.
Section 11. Miscellaneous.
Section 11.1 Waiver. No failure on the part of the
Administrative Agent or any Bank to exercise and no delay in
exercising, and no course of dealing with respect to, any right, power
or privilege under this Agreement or any Note shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement or any Note preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
Section 11.2 Notices. All notices, requests and other
communications provided for herein (including, without limitation, any
modifications of, or waivers, requests or consents under, this
Agreement) shall be given or made in writing (including, without
limitation, by telecopy) delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages
hereof; or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communication shall be
deemed to have been duly given when transmitted by telecopier or
personally delivered or, in the case of a mailed notice, upon receipt,
in each case given or addressed as aforesaid.
Section 11.3 Expenses, Etc.
(a) Each Borrower agrees severally (pro rata based on their
respective Net Asset Values) (i) to reimburse the Administrative Agent
for its reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and any Notes
and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative
Agent, (ii) to reimburse each Bank and the Administrative Agent for all
its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement with respect to such
Borrower, the Notes, and any such other documents, including, without
limitation, the fees and disbursements of counsel to each Bank and of
counsel to the Administrative Agent, (iii) to indemnify and hold each
Bank and the Administrative Agent harmless from any and all recording
and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if
any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration
of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in
respect of, this Agreement, any Notes, and any such other documents
with respect to such Borrower, and (iv) to indemnify and hold each Bank
and the Administrative Agent (and their respective affiliates,
directors, officers, agents and employees (collectively with the
Administrative Agent and the Banks, the "Indemnified Parties"))
harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
out-of-pocket expenses or disbursements of any kind or nature
whatsoever arising from or in connection with the execution, delivery,
enforcement, performance and administration of this Agreement, any
Notes, and any such other documents (all the foregoing in this clause
(iv), collectively, the "indemnified liabilities"), provided, that each
Borrower shall have no obligation hereunder to the Administrative Agent
or any Bank with respect to the indemnified liabilities arising from
(A) the gross negligence or willful misconduct of the Administrative
Agent or any such Bank, as the case may be, (B) disputes arising solely
between or among the Banks or solely between any Bank and the
Administrative Agent, (C) the Administrative Agent or any Bank's
failure to comply with any requirement imposed by applicable law,
unless such failure is attributable to a breach by a Borrower of any
representation, warranty, or covenant under this Agreement, or (D) any
such indemnified liabilities that relate to or arise from litigation
commenced by any Borrower against the Banks or the Administrative Agent
which seeks enforcement of any of the rights of any Borrower hereunder
or under any Note and is determined adversely to the Banks or the
Administrative Agent in a final, non-appealable judgment. (b)
Notwithstanding any other provision in this Agreement to the contrary,
to the extent any obligation to reimburse or indemnify any Indemnified
Party that arises pursuant to Section 11.3(a) hereto is not
attributable to any particular Borrower, then such reimbursement or
indemnification shall be made by each Borrower (pro rata based on their
respective Net Asset Values). To the extent any such obligation to
reimburse or indemnify any Indemnified Party is attributable to one or
more Borrowers, then such reimbursement or indemnification shall be
made ratably by each such Borrower.
Section 11.4 Amendments, Etc. Except as otherwise expressly
provided in this Agreement, any provision of this Agreement may be
modified or supplemented only by an instrument in writing signed by the
Funds and the Majority Banks, or by the Funds and the Administrative
Agent acting with the consent of the Majority Banks, and any provision
of this Agreement may be waived by the Majority Banks or by the
Administrative Agent acting with the consent of the Majority Banks;
provided, that: (a) no modification, supplement or waiver shall, unless
by an instrument signed by all of the Banks or by the Administrative
Agent acting with the consent of all of the Banks: (i) increase, or
extend the term of the Commitments, or extend the time or waive any
requirement for the reduction or termination of the Commitments, (ii)
extend the date fixed for the payment of principal of or interest on
any Loan or any fee hereunder, (iii) reduce the amount of any such
payment of principal, (iv) reduce the rate at which interest is payable
thereon or any fee is payable hereunder, (v) alter the rights or
obligations of a Borrower to prepay Loans, (vi) alter the manner in
which payments or prepayments of principal interest or other amounts
hereunder shall be applied as between the Banks, (vii) alter the
required Asset Coverage as set forth in Section 6.2(d) hereof, (viii)
alter the terms of this Section 11.4, (ix) amend Schedule I pursuant to
Section 2.11(a) hereof, or (x) modify the definition of the term
"Majority Banks" or modify in any other manner the number or percentage
of the Banks required to make any determinations or waive any rights
hereunder or to modify any provision hereof, and (b) any modification
or supplement of Section 10 hereof, or of any of the rights or duties
of the Administrative Agent hereunder, shall require the consent of the
Administrative Agent.
Section 11.5 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
Section 11.6 Assignments and Participations.
(a) The Funds may not assign any of their rights or
obligations hereunder or under the Notes without the prior consent of
all of the Banks and the Administrative Agent.
(b) Each Bank may assign any of its Loans, its Notes, and its
Commitment (but only with the consent of the Administrative Agent and,
if no Default exists and is continuing, the Funds) to an Eligible
Lender; provided that
(i) no such consent by the Funds or the Administrative
Agent shall be required in the case of any assignment
to another Bank;
(ii) except to the extent the Funds and the Administrative
Agent shall otherwise consent, any such partial
assignment (other than to another Bank) shall be in
an amount at least equal to $2,000,000,
(iii) each such assignment by a Bank of its Loans, Notes or
Commitment shall be made in such manner so that the
same portion of its Loans, Notes and Commitment is
assigned to the respective assignee; and
(iv) each such assignment shall be effected pursuant to an
Assignment and Acceptance in substantially the form
of Exhibit 11.6(b) hereto and the assignor and
assignee shall deliver to the Funds and the
Administrative Agent a fully executed copy thereof.
Upon execution and delivery by the assignor and the assignee to the
Funds and the Administrative Agent of such Assignment and Acceptance,
and upon consent thereto by the Funds and the Administrative Agent to
the extent required above and acceptance thereof by the Administrative
Agent, the assignee shall have, to the extent of such assignment
(unless otherwise consented to by the Funds and the Administrative
Agent), the obligations, rights and benefits of a Bank hereunder
holding the Commitment and Loans (or portions thereof) assigned to it
and specified in such Assignment and Acceptance (in addition to the
Commitment and Loans, if any, theretofore held by such assignee) and
the assigning Bank shall, to the extent of such assignment, be released
from the Commitment (or portion thereof) so assigned. Upon each such
assignment the assigning or assignee Bank shall pay the Administrative
Agent an assignment fee of $3,000.
(c) A Bank may sell or agree to sell to one or more other
Eligible Lenders (each a "Participant") a participation in all or any
part of any Loans held by it, or in its Commitment, provided that such
Participant shall not have any rights or obligations under this
Agreement or any Note (the Participant's rights against such Bank in
respect of such participation to be solely those set forth in the
agreements executed by such Bank in favor of the Participant). All
amounts payable by the Funds to any Bank under Section 5 hereof in
respect of Loans held by it, and its Commitment, shall be determined as
if such Bank had not sold or agreed to sell any participations in such
Loans and Commitment, and as if such Bank were funding each of such
Loan and Commitment in the same way that it is funding the portion of
such Loan and Commitment in which no participations have been sold. In
no event shall a Bank that sells a participation agree with the
Participant to take or refrain from taking any action hereunder except
that such Bank may agree with the Participant that it will not, without
the consent of the Participant, agree to (i) increase or extend the
term of such Bank's Commitment, (ii) extend the date fixed for the
payment of principal of or interest on the related Loan or Loans or any
portion of any fee hereunder payable to the Participant, (iii) reduce
the amount of any such payment of principal, (iv) reduce the rate at
which interest is payable thereon, or any fee hereunder payable to the
Participant, to a level below the rate at which the Participant is
entitled to receive such interest or fee or (v) consent to any
modification, supplement or waiver hereof to the extent that the same,
under Section 11.4 hereof, requires the consent of each Bank.
(d) In addition to the assignments and participations
permitted under the foregoing provisions of this Section 11.6, any Bank
may (without notice to the Funds, the Administrative Agent or any other
Bank and without payment of any fee) (i) assign and pledge all or any
portion of its Loans and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank and (ii) assign all or any portion
of its rights under this Agreement and its Loans and its Note to an
affiliate. No such assignment shall release the assigning Bank from its
obligations hereunder.
(e) A Bank may furnish any information concerning any Borrower
in the possession of such Bank from time to time to assignees and
participants (including prospective assignees and participants),
subject however, to the provisions of Section 11.12(b) hereof.
Section 11.7 Survival. The obligations of the Funds under
Section 11.3 hereof, and the obligations of the Banks under Section
10.5 hereof, shall survive the repayment of the Loans and the
termination of the Commitments (including, with respect to any Bank
that does not agree to the extension of the Commitment Termination Date
in accordance with Section 2.10 hereof, the repayment of the Loans made
by such Bank and the termination of the Commitment of such Bank on the
Commitment Termination in effect before giving effect to such
extension) and, in the case of any Bank that may assign any interest in
its Commitment or Loans hereunder, shall survive the making of such
assignment, notwithstanding that such assigning Bank may cease to be a
"Bank" hereunder. In addition, each representation and warranty made,
or deemed to be made by a notice of any Loan, herein or pursuant
hereto, shall survive the making of such representation and warranty,
and no Bank shall be deemed to have waived, by reason of making any
Loan, any Default that may arise by reason of such representation or
warranty proving to have been false or misleading, notwithstanding that
such Bank or the Administrative Agent may have had notice or knowledge
or reason to believe that such representation or warranty was false or
misleading at the time such Loan was made.
Section 11.8 Caption. The table of contents and captions and
section headings appearing herein are included solely for convenience
of reference and are not intended to affect the interpretation of any
provision of this Agreement.
Section 11.9 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties hereto
may execute this Agreement by signing any such counterpart.
Section 11.10 Governing Law; Submission to Jurisdiction. This
Agreement and the Notes shall be governed by, and construed in
accordance with, the law of the State of New York. Each Fund hereby
submits to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of the Supreme Court of
the State of New York sitting in New York County (including its
Appellate Division), and of any other appellate court in the State of
New York, for the purposes of all legal proceedings arising out of or
relating to this Agreement or the transactions contemplated hereby.
Each Fund hereby irrevocably waives, to the fullest extent permitted by
applicable law, any objection that it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and
any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum. Further, each Fund hereby agrees that
service of process in any such legal proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Fund or
such Borrower at its address set forth on the signature page hereto or
at such other address of which the Administrative Agent shall have been
notified pursuant hereto.
Section 11.11 Waiver of Jury Trial. EACH OF THE FUNDS, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 11.12 Treatment of Certain Information;
Confidentiality.
(a) Each Fund and each Borrower acknowledge that each of the
Administrative Agent and each Bank and their respective affiliates
(collectively, the "Bank Parties") may be providing debt financing,
equity capital or other services (including financial advisory
services) to other companies in respect of which the Funds and/or
Borrowers may have conflicting interests regarding the transactions
described herein and otherwise. The Bank Parties will not use
confidential information obtained from the Funds and/or Borrowers by
virtue of the transactions contemplated by this Agreement or their
other relationships with such Funds and/or Borrowers in connection with
the performance by each of the Bank Parties of services for other
companies, and none of the Bank Parties will furnish any such
confidential information to other companies. Each Fund and each
Borrower also acknowledge that no Bank Party has any obligation to use
in connection with the transactions contemplated by this Agreement, or
to furnish to any fund or any Borrower, confidential information
obtained from other companies.
(b) Each Fund and each Borrower further acknowledges that from
time to time financial advisory, investment banking and other services
may be offered or provided to the Funds (in connection with this
Agreement or otherwise) by any Bank Parties and each Borrower and Fund
hereby authorizes such Bank Parties to share any information delivered
to such Bank Parties by the Borrowers of the Funds pursuant to this
Agreement, it being understood that such Bank Party receiving such
information shall be bound by the provisions of paragraph (c) below as
if it were a Bank hereunder. Such authorization shall survive the
repayment of the Loans and the termination of the Commitments.
(c) Each Bank and the Administrative Agent agrees (on behalf
of itself and each of its affiliates, directors, officers, members,
employees and representatives) to use reasonable precautions to keep
confidential in accordance with its customary procedures for handling
confidential information of the same nature and in accordance with safe
and sound banking practices, any non-public information supplied to it
by the Funds pursuant to this Agreement that is identified by the Funds
as being confidential at the time the same is delivered to the Banks
and the Administrative Agent, provided that nothing herein shall limit
the disclosure of any such information (i) if such information is when
so supplied, or thereafter shall have become, public (other than
through a violation of this Section 11.12, (ii) to the extent required
by statute, rule, regulation or judicial process, (iii) to counsel for
any of the Banks or the Administrative Agent, (iv) to bank examiners
(or any other regulatory authority having jurisdiction over any Bank or
the Administrative Agent), or to auditors or accountants, (v) to the
Administrative Agent or any other Bank (or to Chase Securities Inc.),
(vi) in connection with any litigation to which any one or more of the
Banks or the Administrative Agent is a party, or in connection with the
enforcement of rights or remedies hereunder, (vii) to a subsidiary or
affiliate of such Bank as provided in paragraph (a) above or (viii) to
any assignee or participant (or prospective assignee or participant) so
long as such assignee or participant (or prospective assignee or
participant) first executes and delivers to the respective Bank a
Confidentiality Agreement substantially in the form of Exhibit 11.12(c)
hereto (or executes and delivers to such Bank an acknowledgment to the
effect that it is bound by the provisions of this Section 11.12(c),
which acknowledgment may be included as part of the respective
assignment or participation agreement pursuant to which such assignee
or participant acquires an interest in the Loans hereunder); provided
further, that (x) unless specifically prohibited by applicable law or
court order, each Bank and the Administrative Agent shall, prior to the
disclosure thereof, notify the Funds of any request for disclosure of
any such information (A) 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
(B) pursuant to legal process and (y) in no event shall any Bank or the
Administrative Agent be obligated or required to return any materials
furnished by the Funds. The obligations of each Bank under this Section
11.12 shall supersede and replace the obligations of such Bank under
any confidentiality letter in respect of this financing signed and
delivered by such Bank to the Funds prior to the date hereof; in
addition, the obligations of any assignee that has executed a
Confidentiality Agreement in the form of Exhibit 11.12(c) hereto shall
be superseded by this Section 11.12 upon the date upon which such
assignee becomes a Bank hereunder pursuant to Section 11.6(b) hereof.
Section 11.13 Limited Recourse. Anything in this Agreement to
the contrary notwithstanding, it is understood and agreed that the sole
recourse of the Administrative Agent or any Bank in respect of the
obligations of any Borrower with respect to (a) any Loan made to such
Borrower (including, without limitation, the obligations of such
Borrower to pay the principal of, interest on and other amounts in
respect of, such Loan) and (b) the portion of the commitment fee and
any amount payable pursuant to Sections 7 and 11.3 hereof allocated to
such Borrower shall be limited to the assets of such Borrower and that
neither the Administrative Agent nor any Bank shall have any right to
look to any other Borrower or the assets thereof for the satisfaction
of such obligations.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year
first above written.
AMERICAN CENTURY FUNDS
On behalf of each Fund listed on Schedule I hereto
By: Charles C.S. Park
Title: Assistant Secretary to each Fund listed on
Schedule I hereto
Address for Notices:
4500 Main Street
Kansas City, MO 64111
Attention: Maryanne Roepke
Senior Vice President
Fund Accounting
Telecopier No. 816-340-4042
Telephone No. 816-340-4221
Credit Agreement
Signature Page
THE CHASE MANHATTAN BANK, as Administrative Agent
and as a Bank
------------------------------------------------------
By:
Title:
Lending Office for all Loans:
The Chase Manhattan Bank
Loan and Agency Services Group
Eighth Floor
One Chase Manhattan Plaza
New York, New York 10081
Address for Notices:
The Chase Manhattan Bank
270 Park Avenue
Twentieth Floor
New York, New York 10017
Attention: Gail Weiss
Telecopier No.: 212-270-0670
With a Copy to:
The Chase Manhattan Bank
Loan and Agency Services Group
Eighth Floor
One Chase Manhattan Plaza
New York, New York 10081
Attention: Laura Rebecca
Telecopier No.: 212-552-7490
Credit Agreement
Signature Page
CREDIT LYONNAIS NEW YORK BRANCH
-----------------------------------------------------
By:
Title:
Lending Office for all Loans:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
Address for Notices:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, New York 10019
Attention: Kathleen Bowers
Telecopier No.: 212-261-7367
Credit Agreement
Signature Page
COMMERZBANK AG, NEW YORK BRANCH
-----------------------------------------------------
By:
Title:
-----------------------------------------------------
By:
Title:
Lending Office for all Loans:
Commerzbank AG, New York Branch
2 World Financial Center
New York, New York 10281
Address for Notices:
Commerzbank AG, New York Branch
2 World Financial Center
New York, New York 10281
Attention: Joseph Hayes
Telecopier No.: 212-266-7524
Credit Agreement
Signature Page
THE BANK OF NEW YORK
-----------------------------------------------------
By:
Title:
Lending Office for all Loans:
The Bank of New York
One Wall Street
New York, New York 10286
Address for Notices:
The Bank of New York
One Wall Street
New York, New York 10286
Attention: Scott Buitekant
Telecopier No.: 212-635-6348
Credit Agreement
Signature Page
BANQUE NATIONALE DE PARIS
-----------------------------------------------------
By:
Title:
-----------------------------------------------------
By:
Title:
Lending Office for all Loans:
Banque Nationale de Paris
499 Park Avenue, 3rd Floor
New York, New York 10022
Address for Notices:
Banque Nationale de Paris
499 Park Avenue, 3rd Floor
New York, New York 10022
Attention: Laurent Vanderzyppe
Telecopier No.: 212-415-9707
Credit Agreement
Signature Page
DEN DANSKE BANK AKTIESELSKAB
-----------------------------------------------------
By:
Title:
Lending Office for all Loans:
Den Danske Bank Aktieselskab
280 Park Avenue, 4th Floor East
New York, New York 10017
Address for Notices:
Den Danske Bank Aktieselskab
280 Park Avenue, 4th Floor East
New York, New York 10017
Attention: Sonia Kataria
Telecopier No.: 212-984-8473
Credit Agreement
Signature Page
STATE STREET BANK AND TRUST COMPANY
-----------------------------------------------------
By:
Title:
Lending Office for all Loans:
State Street Bank & Trust Company
225 Franklin Street
Boston, Massachusetts 02110
Address for Notices:
State Street Bank & Trust Company
Lafayette Corporate Center
2 Avenue de Lafayette
Boston, Massachusetts 02111
Attention: Vincent Starck
Telecopier No.: 617-662-2325
Credit Agreement
Signature Page
WESTLB NIEDERLASSUNGEN
-----------------------------------------------------
By:
Title:
Lending Office for all Loans:
WestLB Niederlassungen
1211 Avenue of the Americas
25th Floor
New York, New York 10036
Address for Notices:
WestLB Niederlassungen
1211 Avenue of the Americas
25th Floor
New York, New York 10036
Attention: Jay White
Telecopier No.: 212-852-6156
Credit Agreement
Signature Page
UMB BANK, N.A.
------------------------------------------------------
By:
Title:
Lending Office for all Loans:
UMB Bank, N.A.
1010 Grand Boulevard
Kansas City, Missouri 64106
Address for Notices:
UMB Bank, N.A.
1010 Grand Boulevard
Kansas City, Missouri 64106
Attention: David Proffitt
Telecopier No.: 816-860-7935
SCHEDULE I
BORROWERS AND ALLOCATIONS
Pro Rata
American Century Fund Allocation
......................................................... ...........
......................................................... ...........
American Century Arizona Intermediate-Term Municipal
Fund
......................................................... ...........
......................................................... ...........
American Century Balanced Fund
......................................................... ...........
......................................................... ...........
American Century Bond Fund
......................................................... ...........
......................................................... ...........
American Century California High-Yield Municipal Fund
......................................................... ...........
......................................................... ...........
American Century California Insured Tax-Free Fund
......................................................... ...........
......................................................... ...........
American Century California Intermediate-Term Tax-Free
Fund
......................................................... ...........
......................................................... ...........
American Century California Limited-Term Tax-Free Fund
......................................................... ...........
......................................................... ...........
American Century California Long-Term Tax-Free Fund
......................................................... ...........
......................................................... ...........
American Century Emerging Markets Fund
......................................................... ...........
......................................................... ...........
American Century Equity Growth Fund
......................................................... ...........
......................................................... ...........
American Century Equity Income Fund
......................................................... ...........
......................................................... ...........
American Century Equity Index Fund
......................................................... ...........
......................................................... ...........
American Century Florida Intermediate-Term Municipal
Fund
......................................................... ...........
......................................................... ...........
American Century Giftrust Fund
......................................................... ...........
......................................................... ...........
American Century Global Gold Fund
......................................................... ...........
......................................................... ...........
American Century Global Growth Fund
......................................................... ...........
......................................................... ...........
American Century Global Natural Resource Fund
......................................................... ...........
......................................................... ...........
American Century GNMA Fund
......................................................... ...........
......................................................... ...........
American Century Growth Fund
......................................................... ...........
......................................................... ...........
American Century Heritage Fund
......................................................... ...........
......................................................... ...........
American Century High-Yield Fund
......................................................... ...........
......................................................... ...........
American Century High-Yield Municipal Fund
......................................................... ...........
......................................................... ...........
American Century Income & Growth Fund
......................................................... ...........
......................................................... ...........
American Century Inflation-Adjusted Treasury Fund
......................................................... ...........
......................................................... ...........
American Century Intermediate-Term Bond Fund
......................................................... ...........
......................................................... ...........
American Century Intermediate-Term Tax-Free Fund
......................................................... ...........
......................................................... ...........
American Century Intermediate-Term Treasury Fund
......................................................... ...........
......................................................... ...........
American Century International Bond Fund
......................................................... ...........
......................................................... ...........
American Century International Discovery Fund
......................................................... ...........
......................................................... ...........
American Century International Growth Fund
......................................................... ...........
......................................................... ...........
American Century Largecap Value Fund
......................................................... ...........
......................................................... ...........
American Century Limited-Term Bond Fund
......................................................... ...........
......................................................... ...........
American Century Limited-Term Tax-Free Fund
......................................................... ...........
......................................................... ...........
American Century Long-Term Tax-Free Fund
......................................................... ...........
......................................................... ...........
American Century Long-Term Treasury Fund
......................................................... ...........
......................................................... ...........
American Century New Opportunities Fund
......................................................... ...........
......................................................... ...........
American Century Premium Bond Fund
......................................................... ...........
......................................................... ...........
American Century Real Estate Fund
......................................................... ...........
......................................................... ...........
American Century Select Fund
......................................................... ...........
......................................................... ...........
American Century Short-Term Government Fund
......................................................... ...........
......................................................... ...........
American Century Short-Term Treasury Fund
......................................................... ...........
......................................................... ...........
American Century Small Cap Quantitative Fund
......................................................... ...........
......................................................... ...........
American Century Small Cap Value Fund
......................................................... ...........
......................................................... ...........
American Century Strategic Allocation Fund - Aggressive
......................................................... ...........
......................................................... ...........
American Century Strategic Allocation Fund - Conservative
......................................................... ...........
......................................................... ...........
American Century Strategic Allocation Fund - Moderate
......................................................... ...........
......................................................... ...........
American Century Target 2000 Fund
......................................................... ...........
......................................................... ...........
American Century Target 2005 Fund
......................................................... ...........
......................................................... ...........
American Century Target 2010 Fund
......................................................... ...........
......................................................... ...........
American Century Target 2015 Fund
......................................................... ...........
......................................................... ...........
American Century Target 2020 Fund
......................................................... ...........
......................................................... ...........
American Century Target 2025 Fund
......................................................... ...........
......................................................... ...........
American Century Tax Managed Value Fund
......................................................... ...........
......................................................... ...........
American Century Ultra Fund
......................................................... ...........
......................................................... ...........
American Century Utilities Fund
......................................................... ...........
......................................................... ...........
American Century Value Fund
......................................................... ...........
......................................................... ...........
American Century Vista Fund
......................................................... ...........
......................................................... ...........
American Century VP Advantage Fund
......................................................... ...........
......................................................... ...........
American Century VP Balanced Fund
......................................................... ...........
......................................................... ...........
American Century VP Capital Appreciation Fund
......................................................... ...........
......................................................... ...........
American Century VP Income & Growth Fund
......................................................... ...........
......................................................... ...........
American Century VP International Fund
......................................................... ...........
......................................................... ...........
American Century VP Value Fund
......................................................... ...........
--------------------------------------------------------- -----------
Total for American Century Funds: 100.0000%
--------------------------------------------------------- -----------
Commitments
SCHEDULE II
COMMITMENTS
Amount of
Name and Address of Bank Title Commitment
THE CHASE MANHATTAN BANK Administrative $100,000,000
270 Park Avenue, 36th Floor Agent
New York, New York 10017
Attention: Gail Weiss
Telephone: (212) 270-5049
Facsimile: (212) 270-1789
CREDIT LYONNAIS NEW YORK BRANCH Syndication $100,000,000
1301 Avenue of the Americas Agent
New York, New York 10019
Attention: Kathleen Bowers
Telephone: (212) 261-7367
Facsimile: (212) 261-3401
COMMERZBANK AG, NEW YORK BRANCH Documentation $100,000,000
2 World Financial Center Agent
New York, New York 10281
Attention: Joseph Hayes
Telephone: (212) 266-7518
Facsimile: (212) 266-7524
THE BANK OF NEW YORK Participant $100,000,000
One Wall Street
New York, New York 10286
Attention: Scott Buitekant
Telephone: (212) 635-6958
Facsimile: (212) 635-6348
BANQUE NATIONALE DE PARIS Participant $50,000,000
499 Park Avenue, 3rd Floor
New York, New York 10022
Attention: Laurent Vanderzyppe
Telephone: (212) 415-9406
Facsimile: (212) 415-9707
DEN DANSKE BANK AKTIESELSKAB Participant $50,000,000
280 Park Avenue, 4th Floor East
New York, New York 10017
Attention: Sonia Kataria
Telephone: (212) 984-8473
Facsimile: (212) 370-1682
STATE STREET BANK & TRUST COMPANY Participant $50,000,000
1776 Heritage Drive
North Quincy, Massachusetts 02171
Attention: Omar Hazoury
Telephone: (617) 985-0629
Facsimile: (617) 537-5194
WESTLB NIEDERLASSUNGEN Participant $50,000,000
1211 Sixth Avenue
25th Floor
New York, New York 10036
Attention: Jay White
Telephone: (212) 852-6315
Facsimile: (212) 852-6156
UMB BANK, N.A. Participant $20,000,000
1010 Grand Boulevard
Kansas City, Missouri 64106
Attention: David Proffitt
Telephone: (816) 860-7935
Facsimile: (816) 860-7143
TOTAL: $620,000,000
SCHEDULE III
CUSTODY AGREEMENTS
SCHEDULE IV
DISTRIBUTION AGREEMENTS
SCHEDULE V
INVESTMENT MANAGEMENT AGREEMENTS
SCHEDULE VI
SHAREHOLDER SERVICES AGREEMENTS
SCHEDULE VII
SPECIFIED EXISTING AFFILIATES
EXHIBIT 2.7(a)
FORM OF NOTE
PROMISSORY NOTE
$_________________ [DATE]
New, York, New York
FOR VALUE RECEIVED, [Name of Fund], a ___________ corporation
(the "Fund"), on behalf of [Borrower], hereby promises to pay to
_________________ (the "Bank"), for account of its respective Applicable Lending
Offices provided for by the Credit Agreement referred to below, at the principal
office of The Chase Manhattan Bank at 270 Park Avenue, New York, New York 10017,
the principal sum of _____________ Dollars (or such lesser amount as shall equal
the aggregate unpaid principal amount of the Loans made by the Bank to the Fund
for the benefit of [Borrower] under the Credit Agreement), in lawful money of
the United States of America and in immediately available funds, on the dates
and in the principal amounts provided in the Credit Agreement, and to pay
interest on the unpaid principal amount of each such Loan, at such office, in
like money and funds, for the period commencing on the date of such Loan until
but excluding the date such Loan shall be paid in full, at the rates per annum
and on the dates provided in the Credit Agreement. The sole recourse of the Bank
in respect of the obligations of the Fund on behalf of [Borrower] evidenced by
this Note shall be limited to the assets held in such Fund and nothing contained
herein or in the Credit Agreement shall create any right of the Bank to look to
the assets held in any other Fund for the satisfaction of such obligations.
The date, amount, and interest rate of each Loan made by the
Bank to the Fund for the benefit of [Borrower], and each payment made on account
of the principal thereof, shall be recorded by the bank on its books and, prior
to any transfer of this Note, endorsed by the Bank on the schedule attached.
hereto or any continuation thereof, provided that the failure of the Bank to
make any such recordation (or any error in making any such recordation) or
endorsement shall not affect the obligations of the Fund to make a payment when
due of any amount owing under the Credit Agreement or hereunder in respect of
the Loans made by the Bank to the Fund for the benefit of [Borrower].
This Note is one of the [Borrower] Notes referred to in the
Credit Agreement dated as of December 21, 1999 (as modified and supplemented and
in effect from time to time, the "Credit Agreement") between each Fund signatory
thereto, the lenders party thereto (including the Bank) and The Chase Manhattan
Bank, as Administrative Agent, and evidences Loans made thereunder by the Bank
to the Fund for the benefit of [Borrower]. Terms used but not defined in this
Note have the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the
maturity of this Note upon the occurrence of certain events and for prepayments
of Loans upon the terms and conditions specified therein.
Except as permitted by Section 11.6 of the Credit Agreement,
this Note may not be assigned by the Bank to any other Person.
This Note shall be governed by, and construed in accordance
with, the law of the State of New York.
[Fund]
By
Name:
Title:
SCHEDULE OF LOANS
This Note evidences Loans made under the within-described Credit
Agreement to the fund for the benefit of [Borrower], on the dates, in the
principal amounts and bearing interest at the rates set forth below, subject to
the payments and prepayments of principal set forth below.
Date Principal Maturity Amount Unpaid
of Amount Interest Date of Paid or Principal Notation
Loan of Loan Rate Loan Prepaid Amount Made by
---- ------- ---- ---- ------- ------ -------
EXHIBIT 2.11(a)
FORM OF DESIGNATION OF NEW BORROWERS
[Date]
The Chase Manhattan Bank, as Administrative Agent
[List of Lenders]
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of December
21, 1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") between and among each of (i) the Funds that is a signatory
thereto, on behalf of itself and each series of portfolio of the Fund named
therein (each, a "Borrower" and collectively, the "Borrowers"), (ii) the several
Banks from time to time party thereto, and (iii) The Chase Manhattan Bank, as
Administrative Agent. Capitalized terms used but not defined herein shall have
the meanings ascribed to them in the Credit Agreement.
[NAME OF FUND] (the "Fund") on behalf of itself and [NAME OF BORROWER]
(the "Series") hereby requests pursuant to Section 2.11 of the Credit Agreement
that the Series be admitted as an additional Borrower under the Credit
Agreement. Furthermore, the Fund requests that Schedule I of the Credit
Agreement be replace with the form of Schedule I attached hereto.
The Fund, on behalf of itself and the Series, hereby represents and
warrants to the Administrative Agent and each Bank that as of the date hereof
and after giving effect to the admission of the Series as an additional Borrower
under the Credit Agreement: (i) the representations and warranties set forth in
Section 7 of the Credit Agreement are true and correct with respect to the
Series; (ii) the Series is in compliance in all material respects with all the
terms and provisions set forth in the Credit Agreement on its part to be
observed or performed as of the date hereof and after giving effect to the
admission; and (iii) no Default or Event of Default with respect to the Series,
nor any event which with the giving of notice or the expiration of any
applicable grace period or both would constitute such a Default or Event of
Default with respect to the Series has occurred and is continuing.
The Series agrees to be bound by the terms and conditions of the Credit
Agreement in all respects as a Borrower thereunder and hereby assumes all of the
obligations of a Borrower thereunder.
Please indicate your assent to the admission of each Series as an
additional Borrower under the Credit Agreement and the replacement of Schedule I
to the Credit Agreement by signing below where indicated.
[FUND, for itself and on behalf of each
Borrower related to a series issued by it]
By: _______________________________
Name:
Title:
AGREED AND ACCEPTED:
THE CHASE MANHATTAN BANK
as Administrative Agent and as a Bank
By: ___________________________
Name:
Title:
[SIGNATURE LINE FOR OTHER LENDERS]
EXHIBIT 6.1(b)
FORM OF OPINION
[To be supplied]
EXHIBIT 11.6(b)
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of
December 21, 1999 (as modified and supplemented and in effect from time to time,
the "Credit Agreement"), between each Fund signatory thereto, the Banks named
therein, and The Chase Manhattan Bank, as administrative agent for such Banks.
Terms defined in the Credit Agreement are used herein as defined therein.
_______________ (the "Assignor") and _____________ (the
"Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date as set forth in Schedule I hereto (the "Effective Date"), an
interest (the "Assigned Interest") in and to the Assignor's rights and
obligations under the Credit Agreement with respect to the Commitment and the
Loans, in a principal amount and percentage for each Assigned Interest as set
forth on Schedule 1.
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
instrument or document furnished pursuant thereto, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, any Note or any other instrument or document furnished pursuant
thereto, other than that it has not created any adverse claim upon the interest
being assigned by it hereunder and that such interest is free and clear of any
such adverse claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Fund, any Borrower
or any other obligation or the performance or observance by any Fund (whether on
its own behalf or on behalf of any Borrower) of any of its obligations under the
Credit Agreement or any Note or any other instrument or document furnished
pursuant hereto or thereto; and (iii) attaches the Note(s), if any, held by it
evidencing the Assigned Interests and requests that the Administrative Agent
exchange such Note(s), if any, for a new Note or Notes payable to the Assignor
(if the Assignor has retained any interest in the Commitment) and a new Note or
Notes payable to the Assignee in the respective amounts which reflect the
assignment being made hereby (and after giving effect to any other assignments
which have become effective on the Effective Date).
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section 8.1 thereof, if any, 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; (iii)
agrees that it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, the
Notes or any other instrument or document furnished pursuant hereto or thereto;
and (iv) appoints and authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers and discretion
under the Credit Agreement, the Notes or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are incidental thereto.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Administrative Agent for acceptance by the
Administrative Agent pursuant to Section 11.6 of the Credit Agreement, effective
as of the Effective Date (which date shall not, unless otherwise agreed to by
the Administrative Agent, be earlier than five Business Days after the date of
such acceptance by the Administrative Agent).
5. Upon such acceptance, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignee which accrue subsequent to the Effective Date.
6. From and after the Effective Date, (i) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Bank thereunder
and under the Notes and shall be bound by the provisions thereof and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement except as provided in Section 11.7 of the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the law of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Assignment and
Acceptance by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule I hereto.
Schedule I to
Assignment and Acceptance
relating to the Credit Agreement,
dated as of December 21, 1999,
between each Fund signatory thereto,
the Banks named therein and
The Chase Manhattan Bank, as administrative agent for the Banks
(in such capacity, the "Administrative Agent")
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Principal Percentage
Amount Assigned Assigned
[ASSIGNEE] [ASSIGNOR]
By:_______________________ By:_______________________
Title: Title:
Consented to and Accepted:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:_______________________
Title:
[Funds]
By: _______________________
Title:
EXHIBIT 11.12(c)
FORM OF CONFIDENTIALITY AGREEMENT
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Credit Agreement dated as of December 21, 1999 (as
modified and supplemented and in effect from time to
time, the "Credit Agreement"), between each Fund
signatory thereto, the Banks party thereto, and The
Chase Manhattan Bank, as Administrative Agent.
Dear Ladies and Gentlemen:
As a Bank party to the Credit Agreement, we have agreed with
the Funds pursuant to Section 11.12 of the Credit Agreement to use reasonable
precautions to keep confidential, except as otherwise provided therein, all
non-public information identified by the Funds as being confidential at the time
the same is delivered to us pursuant to the Credit Agreement.
As provided in said Section 11.12, we are permitted to provide
you, as a prospective [holder of a participation in the Loans (as defined in the
Credit Agreement)] [assignee Bank], with certain non-public information subject
to the execution and delivery by you, prior to receiving such non-public
information, of a Confidentiality Agreement in this form. Such information will
not be made available to you until your execution and return to us of this
Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on
behalf of yourself and each of your affiliates, directors, officers, members,
employees and representatives and for the benefit of us and the Funds) that (A)
such information will not be used by you except in connection with the proposed
[participation][assignment] mentioned above and (B) you shall use reasonable
precautions, in accordance with your customary procedures for handling
confidential information and in accordance with safe and sound banking
practices, to keep such information confidential,, provided that nothing herein
shall limit the disclosure of any such information (i) if such information is or
hereafter shall have become public (other than through a violation of Section
11.12 of the Credit Agreement), (ii) to the extent required by statute, rule,
regulation or judicial process, (iii) to your counsel or to counsel for any of
the Banks or the Administrative Agent, (iv) to bank examiners (or any other
regulatory authority having jurisdiction over any Bank or the Administrative
Agent), or to auditors or accountants, (v) to the Administrative Agent or any
other Bank (or to Chase Securities Inc.), (vi) in connection with any litigation
to which you or any one or more of the Banks or the Administrative Agent are a
party, or in connection with the enforcement of rights or remedies under the
Credit Agreement, (vii) to a subsidiary or affiliate of any Bank as provided in
Section 11.12(a) of the Credit Agreement or (viii) to any assignee or
participant (or prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) first executes and delivers
to you a Confidentiality Agreement substantially in the form hereof; provided,
further, that (x) unless specifically prohibited by applicable law or court
order, you agree, prior to the disclosure thereof, to notify the Company of any
request for disclosure of any such information (A) by any governmental agency or
representative thereof (other than any such request in connection with an
examination of your financial condition by such governmental agency) or (B)
pursuant to legal process and (y) that in no event shall you be obligated to
return any materials furnished to you pursuant to this Confidentiality
Agreement.
If you are a prospective assignee, your obligations under this
Confidentiality Agreement shall be superseded by Section 11.12 of the Credit
Agreement on the date upon which you become a Bank under the Credit Agreement
pursuant to Section 11.6(b) thereof.
Please indicate your agreement to the foregoing by signing as
provided below the enclosed copy of this Confidentiality Agreement and returning
the same to us.
Very truly yours,
[INSERT NAME OF BANK]
By_________________________
The foregoing is agreed to as of the date of this letter.
[INSERT NAME OF PROSPECTIVE
PARTICIPANT OR ASSIGNEE]
By_________________________