Exhibit (b)(1)
CERTAIN MUTUAL FUNDS MANAGED BY
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(FORMERLY KNOWN AS ZURICH ▇▇▇▇▇▇▇ INVESTMENTS, INC.),
THE LENDERS NAMED HEREIN
AND
JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT
----------
▇. ▇. ▇▇▇▇▇▇ SECURITIES INC.,
AS ADVISOR, LEAD ARRANGER, AND BOOK MANAGER
----------
STATE STREET BANK AND TRUST COMPANY AND
CREDIT LYONNAIS NEW YORK BRANCH,
AS SYNDICATION AGENTS
----------
$1,300,000,000
CREDIT AGREEMENT
----------
DATED AS OF APRIL 11, 2002
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS..................................................................................................... 1
1.1 Defined Terms............................................................................................... 1
1.2 Other Definitional Provisions............................................................................... 9
1.3 Assumptions Regarding Structure............................................................................. 9
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS................................................................................. 9
2.1 Commitments................................................................................................. 9
2.2 Procedure for Borrowing.................................................................................... 10
2.3 Fees....................................................................................................... 10
2.4 Termination and Reduction of Commitment.................................................................... 11
2.5 Repayment of Loans; Evidence of Debt....................................................................... 11
2.6 Optional and Mandatory Prepayments......................................................................... 12
2.7 Interest Rates and Payment Dates........................................................................... 13
2.8 Computation of Interest and Fees........................................................................... 13
2.9 Pro Rata Treatment and Payments............................................................................ 14
2.10 Requirements of Law........................................................................................ 14
2.11 Taxes...................................................................................................... 15
2.12 Change of Lending Office; Replacement of Lender............................................................ 17
2.13 Swing Line Commitment...................................................................................... 17
2.14 Procedure for Swing Line Borrowing......................................................................... 17
2.15 Refunding of Swing Line Loans.............................................................................. 18
2.16 Designation of Additional Borrowers; Amendments to Schedule I.............................................. 19
2.17 Interfund Lending.......................................................................................... 19
SECTION 3. REPRESENTATIONS AND WARRANTIES................................................................................. 20
3.1 Financial Condition........................................................................................ 20
3.2 No Change.................................................................................................. 20
3.3 Existence; Compliance with Law............................................................................. 20
3.4 Power; Authorization; Enforceable Obligations.............................................................. 21
3.5 No Legal Bar............................................................................................... 21
3.6 No Material Litigation..................................................................................... 21
3.7 No Default................................................................................................. 21
3.8 Ownership of Property; Liens............................................................................... 22
3.9 No Burdensome Restrictions................................................................................. 22
3.10 Taxes...................................................................................................... 22
3.11 Federal Regulations........................................................................................ 22
3.12 ERISA...................................................................................................... 22
3.13 Certain Regulations........................................................................................ 22
3.14 Subsidiaries............................................................................................... 22
3.15 Registration of the Funds.................................................................................. 23
ii
3.16 Offering in Compliance with Securities Laws................................................................ 23
3.17 Investment Policies........................................................................................ 23
3.18 Permission to Borrow....................................................................................... 23
3.19 Accuracy of Information; Electronic information............................................................ 23
3.20 Affiliated Persons......................................................................................... 23
SECTION 4. CONDITIONS PRECEDENT............................................................................................ 24
4.1 Conditions to Initial Loans................................................................................ 24
4.2 Conditions to Each Loan.................................................................................... 26
SECTION 5. AFFIRMATIVE COVENANTS.......................................................................................... 27
5.1 Financial Statements....................................................................................... 27
5.2 Certificates; Other Information............................................................................ 28
5.3 Payment of Obligations..................................................................................... 28
5.4 Conduct of Business and Maintenance of Existence........................................................... 28
5.5 Maintenance of Property; Insurance......................................................................... 29
5.6 Inspection of Property; Books and Records; Discussions..................................................... 29
5.7 Notices.................................................................................................... 29
5.8 Purpose of Loans........................................................................................... 30
5.9 Payment of Taxes........................................................................................... 30
SECTION 6. NEGATIVE COVENANTS 30
6.1 Financial Condition Covenant............................................................................... 30
6.2 Limitation on Indebtedness; Derivatives.................................................................... 31
6.3 Limitation on Liens........................................................................................ 31
6.4 Limitation on Guarantee Obligations........................................................................ 31
6.5 Limitation on Fundamental Changes.......................................................................... 31
6.6 Limitation on Distributions................................................................................ 32
6.7 Limitation on Investments, Loans and Advances.............................................................. 32
6.8 Limitation on Transactions with Affiliates................................................................. 32
6.9 Limitation on Negative Pledge Clauses...................................................................... 32
6.10 Limitation on Changes to Investment Policies............................................................... 32
6.11 Permitted Activities....................................................................................... 33
6.12 Sale of Assets, Consolidation, Merger, Etc................................................................. 33
SECTION 7. EVENTS OF DEFAULT.............................................................................................. 33
SECTION 8. THE ADMINISTRATIVE AGENT....................................................................................... 36
8.1 Appointment................................................................................................ 36
8.2 Delegation of Duties....................................................................................... 37
8.3 Exculpatory Provisions..................................................................................... 37
iii
8.4 Reliance by Administrative Agent........................................................................... 37
8.5 Notice of Default.......................................................................................... 37
8.6 Non-Reliance on Administrative Agent and Other Lenders..................................................... 38
8.7 Indemnification............................................................................................ 38
8.8 Administrative Agent in Its Individual Capacity............................................................ 39
8.9 Successor Administrative Agent............................................................................. 39
SECTION 9. MISCELLANEOUS.................................................................................................. 39
9.1 Amendments and Waivers..................................................................................... 39
9.2 Notices.................................................................................................... 40
9.3 No Waiver; Cumulative Remedies............................................................................. 41
9.4 Survival of Representations and Warranties................................................................. 41
9.5 Payment of Expenses and Taxes.............................................................................. 41
9.6 Successors and Assigns; Participations and Assignments..................................................... 42
9.7 Adjustments; Set-off....................................................................................... 44
9.8 Counterparts............................................................................................... 45
9.9 Severability............................................................................................... 45
9.10 Integration................................................................................................ 45
9.11 GOVERNING LAW.............................................................................................. 46
9.12 Submission To Jurisdiction; Waivers........................................................................ 46
9.13 Acknowledgements........................................................................................... 47
9.14 WAIVERS OF JURY TRIAL...................................................................................... 47
9.15 Recourse................................................................................................... 48
9.16 Integration................................................................................................ 48
9.17 Termination of Existing Credit Facilities.................................................................. 48
SCHEDULES:
Schedule I Borrowers & Pro Rata Allocations
Schedule II Commitments, Addresses, Etc.
Schedule III Amendments to Investment Management Agreements
Schedule IV Amendments to Custody Agreements
EXHIBITS:
Exhibit 2.5(e) Form of Note
Exhibit 2.16(a) Form for Designation of New Borrowers
Exhibit 4.1(g) Form of Opinion
Exhibit 9.6(c) Form of Assignment and Acceptance
iv
Exhibit (b)(1)
CREDIT AGREEMENT, dated as of April 11, 2002 (as amended, restated,
supplemented or otherwise modified from time to time, this "Agreement") among
(i) the undersigned registered investment companies (each, a "Fund", and
collectively, the "Funds"), each of which is executing this Agreement on behalf
of itself, and, if applicable, certain of its respective investment portfolios
set forth beneath such Fund's name on the signature pages hereon (each of which
Funds or investment portfolios, as the case may be, is, individually, a
"Borrower" and, collectively, the "Borrowers"), (ii) the several banks and other
financial institutions from time to time parties to this Agreement (the
"Lenders") and (iii) JPMORGAN CHASE BANK, a New York banking corporation, as a
Lender and as administrative agent for the Lenders hereunder (in such capacity,
the "Administrative Agent");
W I T N E S S E T H :
WHEREAS, each Fund is an open-end or a closed-end registered investment
company under the Investment Company Act of 1940 for which Deutsche IMA (as
defined below) acts as an investment manager;
WHEREAS, each Borrower has requested the Lenders 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; and
WHEREAS, each Lender acknowledges that each Borrower shall be liable
hereunder only for the Loans made to such Borrower hereunder and interest
thereon and for the fees and expenses associated therewith and as otherwise set
forth herein, 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 to this Agreement agree as follows:
SECTION 1. DEFINITIONS
Defined Terms. As used in this Agreement, the following terms shall have
the following meanings:
"Administrative Agent": JPMorgan Chase Bank, together with its
permitted successors, as the administrative agent for the Lenders under this
Agreement and the other Loan Documents.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to (a)
vote 10% or more of the securities having ordinary voting power for the election
of directors of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aggregate Commitment": the total of all Commitments of all Lenders, as
may be reduced from time to time in the accordance with the terms of this
Agreement. On the Closing Date at the time of closing, the Aggregate Commitment
shall be equal to $1,300,000,000.
"Agreement": this Credit Agreement, as further amended, restated,
supplemented or otherwise modified from time to time.
"Applicable Law": any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Applicable Margin": 0.50% per annum.
"Asset Coverage Ratio": with respect to any Borrower, the ratio which
the value of the Total Assets of such Borrower less all liabilities and
Indebtedness not represented by Senior Securities, bears to the aggregate amount
of all Senior Securities representing Indebtedness of such Borrower. For the
purposes of calculating the Asset Coverage Ratio, the amount of any liability or
Indebtedness deducted from Total Assets shall be equal to the greater of (x) the
outstanding amount of such liability or Indebtedness and (y) the fair market
value of all assets securing such liability or Indebtedness. The indebtedness
incurred by any Borrower under any Interfund Lending shall be deemed to be a
Senior Security for purposes of calculating the Asset Coverage Ratio as it
applies to the Borrower
"Assignee": as defined in Section 9.6(c).
"Available Commitment": as to any Lender at any time, an amount equal
to (a) the amount of such ▇▇▇▇▇▇'s Commitment less (b) the aggregate principal
amount of all Loans to all Borrowers made by such Lender then outstanding;
collectively, as to all the Lenders, the "Available Commitments".
"Benefited Lender": as defined in Section 9.7(a).
"Borrower" and "Borrowers": as defined in the Preamble hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
Section 2.2 or 2.14 as a date on which a Fund, on its own behalf or if
applicable on behalf of an investment portfolio thereof that is a Borrower,
requests the Lenders to make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close.
"Charter Documents": the certificate of incorporation, declaration of
trust, by-laws or other organizational or governing documents of a Fund, in each
case applicable to or binding upon such Fund or any of its property or to which
such Fund or any of its property is subject.
2
"Chase": JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank), a New York banking corporation.
"Closing Date": the date on which the conditions precedent set forth in
Section 4.1 shall be satisfied and the Loan Documents are signed by the parties
hereto and delivered to the offices of Pryor, Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, which date shall be the date as of which
this Agreement is dated.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Lender, the obligation of such Lender to make
Loans to the Borrowers hereunder in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such ▇▇▇▇▇▇'s name
on Schedule II hereto.
"Commitment Fee": as defined in Section 2.3.
"Commitment Percentage": as to any Lender at any time, the percentage
which such ▇▇▇▇▇▇'s Commitment then constitutes of the aggregate Commitments of
all Lenders (or, at any time after the Commitments of all the Lenders shall have
expired or terminated, the percentage which the aggregate principal amount of
such ▇▇▇▇▇▇'s Loans then outstanding constitutes of the aggregate principal
amount of the Loans of all the Lenders then outstanding).
"Commitment Period": the period from and including the Closing Date, to
but not including, the Termination Date.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with any Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes any Borrower and which is
treated as a single employer under Section 414 of the Code.
"Confidential Information": as defined in Section 9.10(b) hereof.
"Contractual Obligation": 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": as to each Fund, on its own behalf or if
applicable on behalf of each investment portfolio thereof that is a Borrower,
the Custody Agreement(s) set forth in Schedule IV hereto.
"Default": any of the events specified in Section 7, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"Designated Borrower": any Borrower designated as such on Schedule I
hereto.
3
"Designated Borrower Asset Coverage Ratio Percentage": the percentage
stated in Schedule I hereto for each Designated Borrower.
"Deutsche IMA": Deutsche Investment Management Americas Inc., a
Delaware corporation.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Eligible Lender": an entity that is a "Bank" (as defined in the 1940
Act) and is not otherwise prohibited by Section 17 of the 1940 Act from lending
to any of the Borrowers.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default": any of the events specified in Section 7, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Federal Funds Rate": for any day, the "offered rate", as determined by
Chase, or, in the case of Swing Line loans, the Swing Line Lender, for overnight
federal funds, which rate is determined day to day and will be reasonably
representative of the market conditions at the times set.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Fund": as defined in the Preamble hereto.
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time.
"Governmental Authority": 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 Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (A) for the purchase or payment of any such
primary obligation or (B) to maintain working capital or equity capital of the
primary
4
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv) otherwise
to assure or hold harmless the owner of any such primary obligation against loss
in respect thereof; provided, however, that the term Guarantee Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guarantee Obligation shall be
such guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by such guaranteeing person in good faith.
"Indebtedness": of any Person at any date, (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar debt instrument, (c) all obligations of such Person under Financing
Leases or Interest Rate Agreements, calculated daily on a marked-to-market basis
in accordance with GAAP, (d) all obligations of such Person in respect of
acceptances (as defined in Section 3-410 of the UCC) issued or created for the
account of such Person, (e) all reimbursement obligations of such person arising
out of any letters of credit, and (f) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof.
"Interest Payment Date": as to any Loan, the Maturity Date for such
Loan, or with respect to any prepayment, the date of such prepayment.
"Interest Rate Agreement": any interest rate protection agreement,
interest rate future, interest rate option, interest rate swap, interest rate
cap or other interest rate hedge or arrangement under which a Fund, on its own
behalf or if applicable on behalf of an investment portfolio thereof that is a
Borrower, is a party or a beneficiary.
"Interfund Lending": lending by a registered investment company or an
investment portfolio thereof advised by Deutsche IMA to one or more other
registered investment companies or investment portfolios thereof advised by
Deutsche IMA, or borrowing by a registered investment company or an investment
portfolio thereof advised by Deutsche IMA from one or more other registered
investment companies or investment portfolios thereof advised by Deutsche IMA,
in either case pursuant to an Interfund Lending Exemptive Order issued by the
Securities and Exchange Commission, or otherwise allowed by any Applicable Law.
"Interfund Lending Exemptive Order": an exemptive order, including any
amended or supplemental order, issued by the Securities and Exchange Commission
authorizing Interfund Lending.
5
"Interfund Loan": a loan to a Borrower pursuant to an Interfund Lending
arrangement.
"Investment Management Agreement": as to the Funds and each Borrower,
the Investment Management Agreement set forth on Schedule III hereto.
"Investment Policies": as to each Borrower, the policies and objectives
for, and limits and restrictions on, investing by such Borrower set forth in the
Prospectus relating to such Borrower.
"Lenders": as defined in the Preamble hereto.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
"Loan Documents": this Agreement, the Notes and all other agreements,
instruments, and other documents entered into in connection with the
transactions contemplated by this Agreement, and all amendments and supplements
thereto.
"Loans": all loans made pursuant to this Agreement; individually, a
"Loan".
"Material Adverse Effect": a material adverse effect on (a) the
business, financial condition, operations or ability to timely perform any of
its material obligations under the Loan Documents of a Fund or a Borrower or (b)
the legality, validity, binding nature or enforceability of the Loan Documents
or the rights or remedies of the Administrative Agent or the Lenders hereunder
or thereunder.
"Maturity Date": as to each Loan, the date which is the earliest of (a)
30 days after the Borrowing Date for such Loan (or, with respect to a Swing Line
Loan, seven days after the Borrowing date therefor), (b) the Termination Date
and (c) the payment in full of such Loan.
"Moody's": ▇▇▇▇▇'▇ Investor Service, Inc.
"1940 Act": the Investment Company Act of 1940, as amended, together
with all rules and regulations promulgated from time to time thereunder.
"Non-Excluded Taxes": as defined in Section 2.11.
"Non-Recourse Person": as defined in Section 9.15.
"Notes": the collective reference to the Revolving Credit Notes;
individually, a "Note".
6
"Original Closing Dates": the closing dates of those certain Credit
Agreements dated as of April 28, 1999 and November 22, 1999, as each has been
amended, restated or otherwise modified from time to time, including without
limitation as terminated, replaced and restated by any Termination, Replacement
and Restatement Agreements, between, respectively, the Borrowers (as defined
therein) party thereto, the Lenders (as defined therein) party thereto and the
Administrative Agent.
"Participant": as defined in Section 9.6(b).
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan covered by
ERISA which any applicable Person maintains.
"Pro Rata Allocation": as to each Borrower, the percentage amount
stated in Schedule I to this Agreement; provided that, if no Event of Default
shall have occurred and be continuing, Deutsche IMA, on behalf of the Borrowers
and without the consent of the Lenders, by written notice to the Administrative
Agent, may change the Pro Rata Allocations from time to time in Deutsche IMA's
sole discretion; provided further, that while an Event of Default has occurred
and is continuing with respect to a Borrower, the Pro Rata Allocations may be
changed in such manner as long as the Pro Rata Allocation of any such defaulting
Borrower is not increased; and provided further, that, after any change in Pro
Rata Allocations, the aggregate amount of all Pro Rata Allocations shall equal
100%. The delivery of such written notice shall constitute a representation and
warranty by the Borrowers as of the date thereof that no Event of Default shall
have occurred and be continuing with respect to each Borrower whose Pro Rata
Allocation has been increased.
"Prospectus": at a particular time, shall mean (i) as to a Fund that is
itself a Borrower, the currently effective prospectus and statement of
additional information of such Fund, and (ii) as to each other Borrower, the
applicable portions of the currently effective prospectus(es) and statement(s)
of additional information of the Fund of which such Borrower is an investment
portfolio.
"Register": as defined in Section 9.6(d).
"Registration Statement": (i) as to each Fund that is itself a
Borrower, that registration statement as filed with the Securities and Exchange
Commission under the Securities Act and the 1940 Act, and (ii) as to each other
Borrower, that portion applicable to such Borrower of the registration statement
of the Fund of which such Borrower is an investment portfolio as filed with the
Securities and Exchange Commission under the Securities Act and the 1940 Act; in
each case as amended from time to time.
7
"Regulation T": Regulation T of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Regulation X": Regulation X of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Required Lenders": at any time, Lenders the Commitment Percentages of
which aggregate more than 50%.
"Requirement of Law": as to any Person, the certificate of
incorporation, by-laws, partnership agreement, or other organizational or
governing documents of such Person, and any Applicable Law.
"Responsible Officer": the chairman, vice chairman, president,
treasurer, secretary, assistant treasurer or assistant secretary of a Fund, or,
with respect to financial matters, the treasurer of such Fund.
"Reverse Repurchase Transaction": a transaction whereby a Fund, on its
own behalf or on behalf of a portfolio thereof that is a Borrower, (i) transfers
possession of a security it owns (but not record ownership or the right to
receive interest and principal payments thereon) to another party in exchange
for a percentage of the value of the security (for purposes of this definition,
the "payment proceeds"), and (ii) repossesses the security at an agreed upon
future date by remitting the payment proceeds plus interest.
"Revolving Credit Loan": as defined in Section 2.1.
"Revolving Credit Note": as defined in Section 2.5(e).
"S&P": Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies.
"SFASC": ▇▇▇▇▇▇▇ Fund Accounting Corporation, a Delaware corporation.
"SMFI": ▇▇▇▇▇▇▇ Mutual Funds, Inc., a registered open-end management
investment company under the 1940 Act.
"SPMI": ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Metals, Inc., an offshore company organized
under the laws of the Cayman Islands.
"Securities Act": the Securities Act of 1933, as amended, together with
all rules and regulations promulgated from time to time thereunder.
8
"Senior Securities Representing Indebtedness": any Senior Security
other than stock.
"Senior Security": any bond, debenture, note or similar obligation or
instrument constituting a security and evidencing indebtedness (including
without limitation all Loans under this Agreement), and any share of beneficial
interest or common stock, as the case may be, of a Fund, on its own behalf or if
applicable on behalf of each investment portfolio thereof that is a Borrower, of
a class (other than a class established in accordance with Rule 18f-3 of the
1940 Act) having priority over any other class of shares of such Fund as to
distribution of assets or payment of dividends.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person.
"Swap Obligation": as to any Person, any obligation of such Person
arising out of (i) any "swap agreement" (as defined in Section 101(53B) of the
Bankruptcy Code), (ii) any equity swap, floor, collar, cap or option
transaction, (iii) any option to enter into any of the foregoing or (iv) any
combination of the foregoing.
"Swing Line Commitment": the obligation of the Swing Line Lender to
make Swing Line Loans pursuant to Section 2.13 hereof in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite
the Swing Line Lender's name on Schedule II hereto.
"Swing Line Lender": State Street Bank and Trust Company.
"Swing Line Loans": as defined in Section 2.13 hereof.
"Swing Line Participation Amount": as defined in Section 2.15(c)
hereof.
"Termination Date": April 10, 2003, or such earlier date on which the
Commitments shall terminate as provided herein.
"Total Assets": at any time, all assets of a Borrower which in
accordance with GAAP would be classified as assets on a balance sheet of such
Borrower prepared as of such time; provided, however, that the term Total Assets
shall not include (a) equipment, (b) securities owned by a Borrower which are in
default and (c) deferred organizational and offering expenses.
"Transferee": as defined in Section 9.6(f).
"UCC": the Uniform Commercial Code as from time to time in effect in
the State of New York.
9
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have such defined meanings when used
in any Note or other Loan Document or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any Notes or other Loan Document, and
any certificate or other document made or delivered pursuant
hereto, accounting terms relating to any Fund or Borrower not
defined in Section 1.1 and accounting terms partly defined in
Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP (as consistently
applied).
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of
this Agreement, and Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such
terms.
1.3 Assumptions Regarding Structure. For the sake of clarity and
construction, the parties hereto hereby set forth their acknowledgment and
agreement that each Borrower that is an investment portfolio of a Fund is not a
separately existing legal entity entitled to enter into contractual agreements
or to execute instruments and, for these reasons, any such Fund is executing
this Agreement and each respective Note on behalf of its investment portfolios,
as Borrowers, and that such investment portfolios will utilize the Loans thus
made on their behalf. Notwithstanding anything to the contrary in this
Agreement, each Borrower (including without limitation each Fund that is itself
a 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 in no event shall any Borrower
or its assets be held liable for the Loans made to any other Borrower hereunder
or interest thereon or for the fees and expenses associated therewith.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans ("Revolving Credit Loans") to
each Borrower, from time to time during the Commitment Period, in an aggregate
principal amount at any one time outstanding not to exceed the amount of such
▇▇▇▇▇▇'s Commitment. During the Commitment Period, each Borrower may use
Commitments by borrowing, prepaying Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof and with such procedures
as may be agreed to among the Borrowers from time to time; provided that at no
time may the aggregate principal amount outstanding of Revolving Credit Loans
and Swing Line Loans to all Borrowers exceed the Aggregate Commitment.
10
2.2 Procedure for Borrowing. A Borrower may borrow under the Commitments
during the Commitment Period on any Business Day, provided that the Borrower (or
a Fund on its behalf) shall give the Administrative Agent irrevocable notice
(which notice must be received by the Administrative Agent prior to 3:00 P.M.
New York City time on the requested Borrowing Date in accordance with Section
9.2 hereof), specifying (i) the amount to be borrowed, and (ii) the requested
Borrowing Date. Subject to Section 2.15 hereof, the aggregate amount of each
borrowing by a Borrower under the Commitments on any Borrowing Date shall be in
an amount equal to $500,000 or a whole multiple of $100,000 in excess thereof
(or, if the then Available Commitments are less than $500,000, such lesser
amount), provided that the aggregate amount of all borrowings by the Borrowers
then borrowing on any Borrowing Date shall be in an amount equal to $5,000,000
or a whole multiple of $1,000,000 in excess thereof (or, if the then Available
Commitments are less than $5,000,000, such lesser amount). Upon receipt of any
such notice from a Borrower (or a Fund on its behalf), the Administrative Agent
shall promptly notify each Lender thereof. Each Lender will make the amount of
its pro rata share of each borrowing available to the Administrative Agent for
the account of such Borrower at the office of the Administrative Agent specified
in Section 9.2 prior to 4:00 P.M., New York City time, on the Borrowing Date
requested by such Borrower in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to such Borrower on such
Borrowing Date by the Administrative Agent transferring by wire to the custodian
of and for the account of such Borrower the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent; provided that if, on the Borrowing Date of
any Revolving Credit Loans of a Borrower, any Swing Line Loans to such Borrower
shall be outstanding, the proceeds of such Revolving Credit Loans to such
Borrower shall first be applied to pay in full such Swing Line Loans, with any
remaining proceeds to be made available to such Borrower as provided above.
Anything to the contrary in this Agreement notwithstanding, each of the
Administrative Agent and the Swing Line Lender may rely solely upon a telephonic
request which it reasonably believes is made on behalf of a Borrower in making
Revolving Credit Loans or Swing Line Loans hereunder. Each such telephonic
request for a Revolving Credit Loan or Swing Line Loan shall constitute a
representation and warranty by the applicable Borrower as of the date thereof
that the conditions contained in Section 4.2 have been satisfied with respect to
such Borrower. Such telephonic request shall be confirmed promptly in writing,
by facsimile or other mutually acceptable electronic transmission medium, which
written confirmation must be received by the Administrative Agent or Swing Line
Lender, as the case may be, on the proposed Borrowing Date in form and substance
satisfactory to the Administrative Agent or Swing Line Lender, as the case may
be. Each Borrower agrees to indemnify and hold the Administrative Agent and
Swing Line Lender harmless for any reasonable action taken, including, without
limitation, the making of Revolving Credit Loans or Swing Line Loans to such
Borrower hereunder, or loss or expense incurred, by the Administrative Agent or
Swing Line Lender in good faith reliance upon such telephonic request for a
Revolving Credit Loan or Swing Line Loan; provided that such Borrower shall not
be liable for any such action, loss or expense to the extent the same shall
result solely from the gross negligence or willful misconduct of the
Administrative Agent or the Swing Line Lender.
2.3 Fees. (a) Each Borrower severally, and neither jointly nor jointly and
severally, agrees to pay to the Administrative Agent for the account of each
Lender such ▇▇▇▇▇▇▇▇'s Pro
11
Rata Allocation (as adjusted from time to time in accordance with the terms
hereof) of a commitment fee ("Commitment Fee") during the period which shall
begin on the first day of the Commitment Period and shall extend to the
Termination Date, which Commitment Fee shall be a quarterly fee, computed at the
rate of 0.09% per annum on the average daily amount of the Available Commitments
during each calendar quarter. Such Commitment Fee shall be payable quarterly in
arrears on the last Business Day of each March, June, September and December and
on the Termination Date, commencing on the first of such dates to occur after
the date hereof. Solely for the purpose of calculating the Commitment Fee, Swing
Line Loans will not be deemed a utilization of the Aggregate Commitments of all
Lenders.
(b) Each Borrower severally agrees to pay the Administrative Agent for
the account of the Administrative Agent the fees to which it has separately
agreed.
2.4 Termination and Reduction of Commitments. (a) Each Borrower shall have
the right, upon not less than three Business Days' notice to the Administrative
Agent, to terminate all Commitments with respect to such Borrower. Any
termination of all Commitments to a Borrower shall be effective as of the last
day of the calendar quarter in which such notice is given, and shall be
accompanied by prepayment in full of the Loans to such Borrower then
outstanding, and payment of such Borrower's Pro Rata Allocation of (i) any
accrued Commitment Fees payable by such Borrower hereunder and (ii) any other
accrued fees, expenses or indemnified liabilities payable by such Borrower
hereunder. The amount of the Aggregate Commitment shall not be affected by any
Borrower's termination. Prior to such termination, Deutsche IMA shall notify the
Administrative Agent in writing as to the Pro Rata Allocations of the remaining
Borrowers, effective as of the termination, which notice shall constitute a
representation and warranty by each of the remaining Borrowers that no Event of
Default has occurred and is continuing with respect to each Borrower whose Pro
Rata Allocation has been increased.
(b) Interest accrued on the amount of any prepayment relating to such
termination and any unpaid Commitment Fee accrued hereunder shall be paid on the
date of such termination.
(c) Upon the effective date of such termination, the terminating
Borrower shall no longer be obligated to pay Commitment Fees hereunder or any
share of any other fees, expenses, or indemnified liabilities that may accrue
thereafter.
(d) The Borrowers shall have the right, upon not less than three
Business Days' notice to the Administrative Agent, to reduce the Aggregate
Commitment. Any such reduction shall be accompanied by prepayment in full of the
Loans to the Borrowers then outstanding that are in excess of the Aggregate
Commitment as reduced.
(e) The Administrative Agent shall provide each Lender with prompt
notice of any Commitment changes pursuant to this Section 2.4.
2.5 Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
severally and unconditionally, but not jointly or jointly and severally,
promises to pay to the Administrative
12
Agent for the account of each Lender the then unpaid principal amount of each
Loan of such Lender to such Borrower on the Maturity Date for such Loan (or such
earlier date on which the Loans become due and payable pursuant to Section
2.6(b) or Section 7). Each Borrower hereby further severally, but not jointly or
jointly and severally, agrees to pay to the Administrative Agent for the account
of each Lender interest on the unpaid principal amount of the Loans to such
Borrower from time to time outstanding from the date hereof until payment in
full thereof at the rates per annum, and on the dates, set forth in Section 2.7.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of each Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 9.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any principal or
interest and any other payments received by the Administrative Agent hereunder
from each Borrower and each Lender's share thereof. The Administrative Agent
shall provide a copy of the Register to each Borrower upon request.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.5(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrowers therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of any Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(e) Each Fund, on its own behalf or if applicable on behalf of each
investment portfolio thereof that is a Borrower, agrees that, upon the request
of any Lender to the Administrative Agent, such Fund will execute and deliver to
such Lender a promissory note evidencing the Loans of such Lender to such Fund,
or if applicable such Borrower, substantially in the form of Exhibit 2.5(e) with
appropriate insertions as to date and principal amount (a "Revolving Credit
Note").
(f) The obligations of each Borrower under its Notes and this Agreement
shall be several and neither joint nor joint and several. Notwithstanding
anything to the contrary contained in this Agreement, the parties hereto
acknowledge and agree that the sole source of payment of the obligations of each
Borrower hereunder, including, without limitation, the principal of and interest
on each Loan made hereunder to any Borrower, the Commitment Fee payable pursuant
to Section 2.3 and any other amounts attributable to the Loans made hereunder to
any Borrower shall be the revenues and assets of such Borrower, and not the
revenues and assets of any other Borrower (except as provided in Section 9.5(b))
or the revenues and assets of a Fund acting on behalf of a Borrower (except to
the extent of the revenues and assets of such Borrower).
13
2.6 Optional and Mandatory Prepayments. (a) Each Borrower may prepay the
Loans made to it, in whole or in part, without premium or penalty, upon at least
one Business Day's irrevocable notice to the Administrative Agent, specifying
the date and amount of prepayment. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein. Partial prepayments shall be in an aggregate
principal amount of $1,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(b) If, at any time and from time to time, either (i) (x) for each
Borrower other than Designated Borrowers, the Asset Coverage Ratio for all
borrowings of such Borrower shall be less than 300%, or (y) for each Designated
Borrower, the Asset Coverage Ratio shall be less than the Designated Borrower
Asset Coverage Ratio Percentage for such Designated Borrower, or (ii) the
aggregate amount of all borrowings of a Borrower (including without limitation
the Loans made to a Borrower) then outstanding exceeds the borrowing limits
provided in such Borrower's Prospectus; then in each case within three Business
Days thereafter such Borrower shall repay Loans made to such Borrower to the
extent necessary to ensure that (x) the Asset Coverage Ratio of all borrowings
of such Borrower after such payments is in compliance with applicable covenants
concerning minimum Asset Coverage Ratios set forth in this Agreement and (y) the
aggregate amount of all borrowings made to such Borrower then outstanding does
not after such payments exceed such limits, as the case may be.
2.7 Interest Rates and Payment Dates. (a) Each Loan shall bear interest at
a rate per annum equal to the Federal Funds Rate plus the Applicable Margin.
(b) Upon (i) the occurrence and continuance of any Event of Default
specified in Section 7(e) with respect to a Borrower or (ii) notice given by the
Administrative Agent or the Required Lenders to the Borrower of any other Event
of Default, all Loans outstanding to such Borrower shall bear interest at a rate
per annum which is the rate that would otherwise be applicable thereto pursuant
to the provisions of section 2.7(a), plus 2% per annum. If all or a portion of
(i) the principal amount of any Loan, (ii) any interest payable thereon or (iii)
any Commitment Fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the Federal Funds Rate
plus the Applicable Margin plus 2% per annum from the date of such non-payment
until such amount is paid in full. For the avoidance of doubt, the parties
hereby agree that the maximum amount of interest payable on the principal amount
of any Loan pursuant to this Section 2.7 shall not exceed the sum of the Federal
Funds Rate plus the Applicable Margin plus 2% per annum.
(c) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to the second sentence of paragraph (b)
of this section 2.7 shall be payable from time to time on demand.
2.8 Computation of Interest and Fees. (a) Commitment Fees and interest
shall be calculated on the basis of a 360-day year for the actual days elapsed.
14
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
each Borrower and the Lenders in the absence of manifest error.
2.9 Pro Rata Treatment and Payments. (a) Each borrowing by a Borrower from
the Lenders hereunder, each payment by a Borrower on account of any Commitment
Fee hereunder and any reduction of the Commitments of the Lenders shall be made
pro rata according to the respective Commitment Percentages of the Lenders. Each
payment (including each prepayment) by a Borrower on account of principal of and
interest on the Loans shall be made pro rata according to the respective
outstanding principal amounts of the Loans of such Borrower then held by the
Lenders. All payments (including prepayments) to be made by a Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made no later than 12:00 Noon New York City time, on the due date thereof to
the Administrative Agent, for the account of the Lenders, at the Administrative
Agent's office specified in Section 9.2 hereof, in Dollars, in immediately
available funds and without set-off, counterclaim or deduction of any kind
(other than deductions expressly permitted by this Agreement). The
Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment hereunder becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
(b) Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its Commitment Percentage of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to a
Fund, on its own behalf or if applicable on behalf of an investment portfolio
thereof that is a Borrower, a corresponding amount. If such amount is not made
available by a Lender to the Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a rate equal to the daily average
Federal Funds Rate for the period commencing with such Borrowing Date until such
Lender makes such amount immediately available to the Administrative Agent (it
being understood that none of the Borrowers shall be obligated to repay any such
interest paid by the non-funding Lender). A certificate of the Administrative
Agent submitted to any Lender with respect to any amounts owing under this
Section shall be conclusive in the absence of manifest error. If such Lender's
Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount
with interest thereon from the date of borrowing at the rate per annum
applicable to Loans hereunder, on or before three Business Days following demand
therefor, from the relevant Borrower (and such Borrower may borrow under the
Commitments or under the Swing Line Commitment to satisfy such demand; provided
that, for purposes of determining the Available Commitment, the Commitment of
any non-funding Lender shall be excluded). The Administrative Agent shall
request of each Lender other than the non-funding Lender that it fund the
non-funding Lender's defaulted Commitment (each such other Lender having no
commitment or obligation so to fund such Commitment), and if such funding does
not occur the
15
Administrative Agent shall use its reasonable efforts to obtain funding of such
defaulted Commitment from third-party lenders.
2.10 Requirements of Law. (a) If any Lender shall have determined that the
adoption of or any change in any Requirement of Law (in each case after the date
hereof) of any Governmental Authority regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount determined by such
Lender, in its reasonable discretion, to be material, then from time to time,
each Borrower shall promptly pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction.
(b) If any Lender becomes entitled to claim, and determines that it
will collect from the Borrowers, any additional amounts pursuant to this
Section, it shall promptly notify the Borrowers (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled
by providing a certificate setting forth in reasonable detail the basis for the
claim for additional amounts, the amounts required to be paid by the Borrowers
to such Lender, and the computations made by such Lender to determine the
amounts; provided that such Lender shall not be required to disclose any
confidential information. Such certificate as to any additional amounts payable
pursuant to this Section submitted by such Lender to the Borrowers (with a copy
to the Administrative Agent) shall be conclusive in the absence of manifest
error. The agreements in this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
No Borrower shall be responsible to compensate such Lender for additional
amounts attributable to another Borrower's Loans.
(c) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrowers shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender
notifies the Borrowers of the change in the Requirement of Law giving rise to
such increased costs or reductions and of such ▇▇▇▇▇▇'s intention to claim
compensation therefor; provided further that, if the change in the Requirement
of Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
2.11 Taxes. (a) All payments made by any Borrower under this Agreement and
any Notes shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding all present and future income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or any
Lender as a
16
result of a present or former connection between the Administrative Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any Note). If any such non-excluded taxes,
levies, imposts, duties, charges, fees deductions or withholdings ("Non-Excluded
Taxes") are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder or under any Note, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that a Borrower shall not be required to increase any such amounts
payable to any Lender that is organized under the laws of a jurisdiction outside
the United States of America if such Lender fails to comply with the
requirements of paragraph (b) of this Section. Whenever any Non-Excluded Taxes
are payable by a Borrower, as promptly as possible thereafter such Borrower
shall send to the Administrative Agent for its own account or for the account of
such Lender, as the case may be, a certified copy of an original official
receipt received by such Borrower showing payment thereof. If a Borrower fails
to pay any Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Administrative Agent the required receipts or other
required documentary evidence, such Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is organized under the laws of a jurisdiction
outside the United States of America shall:
(i) deliver to Deutsche IMA and the Administrative Agent prior to
any payments being made under this Agreement or the Notes (A) two properly
completed copies of an appropriate United States Internal Revenue Service
Form W-8 or W-9, or successor applicable form, as the case may be;
(ii) deliver to Deutsche IMA and the Administrative Agent two
further properly completed 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 Deutsche IMA; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by Deutsche IMA or
the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from
17
lawfully completing and delivering any such form with respect to it and such
▇▇▇▇▇▇ so advises Deutsche IMA and the Administrative Agent. Such Lender shall
certify (A) in the case of an appropriate Form W-8, that it is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes and (B) in the case of an appropriate Form
W-8 or W-9, as applicable, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to Section 9.6 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms and statements required
pursuant to this Section, provided that in the case of a Participant such
Participant shall furnish all such required forms and statements to the Lender
from which the related participation shall have been purchased.
2.12 Change of Lending Office; Replacement of Lender. (a) Each Lender
agrees that if it makes any demand for payment under Section 2.10, or any
additional amounts are payable under Section 2.11, it will use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce or obviate the need for a Borrower
to make payments under Section 2.10 or payment of additional amounts under
Section 2.11.
(b) If any Lender shall have required compensation pursuant to Section
2.10, or payment of additional amounts under Section 2.11, the Borrowers shall
have the right, with the consent of the Administrative Agent (which shall not be
unreasonably withheld), to substitute such Lender with an Eligible Lender (a
"Replacement Lender") satisfactory to the Borrowers (which may be one or more of
the other then existing Lenders if they, in their sole discretion, elect to
become such Replacement Lender) to assume the Commitment of such Lender and to
purchase the Notes held by such Lender, if any, for an amount equal to the
principal of, and accrued and unpaid interest on, such Notes, together with the
fee specified in Section 9.6(e) and any other costs reasonably incurred by such
Lender in connection with its sale of such Notes and the assignment of such
Commitment (without recourse to or warranty by such Lender and subject to all
amounts due and owing to such Lender under this Agreement having been paid in
full). Upon the exercise of such right by the Borrowers and the satisfaction of
such conditions thereto, such Lender shall convey its interest to the
Replacement Lender in accordance with the procedures set forth in Section
9.6(c).
2.13 Swing Line Commitment: Subject to the terms and conditions hereof,
the Swing Line Lender agrees to make available to each Borrower a portion of the
credit otherwise available under the Commitments from time to time during the
Commitment Period by making swing line loans ("Swing Line Loans") to such
Borrower in an aggregate principal amount not to exceed at any one time
outstanding the Swing Line Commitment; provided, however, that the Swing Line
Loans outstanding at any time, when aggregated with the Swing Line Lender's
other outstanding Revolving Credit Loans hereunder, may not exceed the Swing
Line Lender's Commitment then in effect; and provided further, however, that on
the date of the making of any Swing Line Loan and while any Swing Line Loan is
outstanding, the sum of the aggregate principal amount of all outstanding
Revolving Credit Loans and Swing Line Loans shall not exceed the total
Commitments (less the Commitment of any non-funding Lender referred to in
Section 2.9(b)). During the Commitment Period applicable to each Borrower, such
Borrower
18
may use the Swing Line Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. Each Swing Line Loan shall bear
interest at a rate per annum equal to the Federal Funds Rate plus the Applicable
Margin.
2.14 Procedure for Swing Line Borrowing. Whenever a Borrower desires that
the Swing Line Lender make Swing Line Loans under Section 2.13, the Borrower (or
the Fund of which it is an investment portfolio) shall give the Swing Line
Lender irrevocable telephonic notice confirmed promptly in writing, by facsimile
or other mutually acceptable electronic transmission medium, to the attention of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ at facsimile number: ▇▇▇-▇▇▇-▇▇▇▇ or such other person or
persons which may be designated by the Swing Line Lender from time to time
(which telephonic notice must be received by the Swing Line Lender not later
than 4:00 P.M., New York City time, on the proposed Borrowing Date, and which
written confirmation must be received by the Swing Line Lender on the proposed
Borrowing Date in form and substance satisfactory to the Swing Line Lender),
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. Upon receipt of any such notice from a
Borrower (or the Fund on its behalf), the Swing Line Lender shall promptly
notify the Administrative Agent thereof. The Swing Line Lender shall make the
amount of such borrowing available to the Borrower, on the Borrowing Date
requested by such Borrower, by transferring such amount by wire or book entry to
the appropriate custodian of and for the account of such Borrower such Swing
Line Loan in immediately available funds.
2.15 Refunding of Swing Line Loans (a) Either the Swing Line Lender or the
Administrative Agent, 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
following the seventh day) after the Borrowing Date with respect to any Swing
Line Loans to a Borrower shall, on behalf of such Borrower (and each Borrower
hereby irrevocably directs the Swing Line Lender and Administrative Agent to so
act on its behalf and with respect to such Borrower), upon notice given by the
Swing Line Lender to the Administrative Agent, or by the Administrative Agent,
no later than 10:00 A.M., New York City time, on the relevant refunding date,
request each Lender to make, and each Lender hereby agrees to make, a Revolving
Credit Loan to such Borrower, at the rate applicable to the Swing Line Loans of
such Borrower, in an amount equal to such ▇▇▇▇▇▇'s Commitment Percentage of the
amount of such Swing Line Loans of such Borrower (the "Refunded Swing Line
Loans") outstanding on the date of such notice, to repay the Swing Line Lender.
Each Lender shall make the amount of such Revolving Credit Loan available to the
Administrative Agent at its office set forth in Section 9.2 in immediately
available funds, no later than 1:00 P.M., New York City time, on the date of
such notice. The proceeds of such Revolving Credit Loans shall be distributed by
the Administrative Agent to the Swing Line Lender and immediately applied by the
Swing Line Lender to repay the Refunded Swing Line Loans. Effective on the day
such Revolving Credit Loans are made, the portion of the Swing Line Loans so
paid shall no longer be outstanding as Swing Line Loans.
(b) The making of any Swing Line Loan hereunder at the request of a
Borrower shall be subject to the satisfaction of the applicable conditions
precedent thereto set forth in Section 4 (unless otherwise waived in accordance
with Section 9.1).
19
(c) If prior to the making of a Revolving Credit Loan to a Borrower
pursuant to Section 2.15(a) one of the events described in paragraph (e) of
Section 7 shall have occurred with respect to such Borrower, each Lender
severally, unconditionally and irrevocably agrees that it shall purchase a
participating interest in the applicable Swing Line Loans ("Unrefunded Swing
Line Loans") in an amount equal to the amount of Revolving Credit Loans which
would otherwise have been made by such Lender pursuant to Section 2.15(a). Each
Lender will immediately transfer to the Administrative Agent, in immediately
available funds, the amount of its participation (the "Swing Line Participation
Amount"), and the proceeds of such participation shall be distributed by the
Administrative Agent to the Swing Line Lender in such amount as will reduce the
amount of the participating interest retained by the Swing Line Lender in its
Swing Line Loans to the amount of the Revolving Credit Loans which were to have
been made by it pursuant to Section 2.15(a).
(d) Whenever, at any time after the Swing Line Lender has received from
any Lender such Lender's Swing Line Participation Amount, the Swing Line Lender
receives any payment on account of the Swing Line Loans, the Swing Line Lender
will distribute to such Lender its Swing Line Participation Amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded and, in the case of principal and interest payments, to reflect such
▇▇▇▇▇▇'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 Lender will return to the Swing Line Lender any
portion thereof previously distributed to it by the Swing Line Lender.
(e) Each Lender's obligation to make the Revolving Credit Loans referred
to in Section 2.15(a) and to purchase participating interests pursuant to
Section 2.15(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the Swing
Line Lender or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of a Default or an Event of Default or the failure to satisfy any
of the other conditions specified in Section 4; (iii) any adverse change in the
condition (financial or otherwise) of any Borrower; (iv) any breach of this
Agreement or any other Loan Document by any Borrower or any Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing, other than solely the gross negligence or willful misconduct
of the Swing Line Lender in making a Swing Line Loan with actual knowledge by
the officer responsible for the making of such Swing Line Loan that such Swing
Line Loan is made without satisfaction of the applicable conditions precedent
thereto set forth in Section 4 and without a waiver in accordance with Section
9.1.
(f) Each Borrower agrees to pay upon demand by the Swing Line Lender any
Swing Line Loan made to such Borrower, or portion thereof, which is not refunded
by the Lenders pursuant to this Section 2.15 (and such Borrower may borrow a
Revolving Credit Loan under the Commitments to satisfy such demand; provided
that, for purposes of determining the Available Commitment, the Commitment of
any non-refunding Lender shall be excluded). Notwithstanding anything to the
contrary contained in this Agreement, any Lender that fails to make available a
Revolving Credit Loan pursuant to Section 2.15(a) or purchase a participating
20
interest in a Swing Line Loan pursuant to Section 2.15(c) shall be deemed
delinquent (a "Delinquent Lender") and to the extent a Borrower subsequently
repays any outstanding Revolving Credit Loans, the Delinquent Lender's pro rata
share of such repayment, if any, shall be paid by the Administrative Agent to
the Swing Line Lender, until the Delinquent Lender's pro rata share of such
Swing Line Loan is repaid in full.
2.16 Designation of Additional Borrowers; Amendments to Schedule I. (a)
Other portfolios of the Funds and other investment companies registered under
the 1940 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 Deutsche IMA or a Subsidiary of Deutsche
IMA acts as the investment manager, may, with the prior written consent of the
Administrative Agent, each Lender and each Fund, become parties to this
Agreement in addition to those Borrowers listed on Schedule I, and be deemed
Borrowers for all purposes of this Agreement by executing an instrument
substantially in the form of Exhibit 2.16(a) hereto (with such changes therein
as may be approved by the Administrative Agent and the Lenders), which
instrument shall (x) have attached to it a copy of this Agreement (as the same
may have been amended) with a revised Schedule I reflecting the participation of
such additional portfolio or investment company, including (if the
Administrative Agent deems it appropriate that the additional Borrower be a
Designated Borrower) the appropriate Designated Borrower Asset Coverage Ratio
Percentage as determined by the Administrative Agent, and any prior revisions to
Schedule I effected in accordance with the terms hereof and (y) be accompanied
by the documents and instruments required to be delivered by the Borrowers
pursuant to Section 4.1, including, without limitation, an opinion of counsel
for the Borrower substantially in the form of Exhibit 4.1(g) hereto.
(b) No Person shall be admitted as a party to this Agreement as a
Borrower unless at the time of such admission and after giving effect thereto:
(i) the representations and warranties set forth in Section 3 shall be true and
correct with respect to such Borrower; (ii) such Borrower shall be in compliance
in all material respects with all of the terms and provisions set forth herein
on its part to be observed or performed at the time of the admission and after
giving effect thereto; and (iii) no Default or Event of Default with respect to
such Borrower shall have occurred and be continuing.
2.17 Interfund Lending. (a) Notwithstanding anything in this Agreement to
the contrary (including, without limitation, Sections 6.2, 6.3 and 6.8 hereof),
Interfund Lending shall be expressly permitted hereunder, and the mere making or
receipt of an Interfund Loan in and of itself shall not, with respect to any
Borrower a party thereto (as a lender or a borrower), constitute a violation of
any condition precedent, representation or covenant contained herein or
constitute a Default or Event of Default; provided that all other terms and
conditions of this Agreement are satisfied, and provided further, that:
(i) such Interfund Lending (1) is not otherwise prohibited by law, (2) has
been duly authorized by each party thereto, (3) is consistent with the terms of
the Interfund Lending Exemptive Order, (4) is not in contravention of the
Borrower's Prospectus, and (5) is deemed to
21
be a Senior Security for purposes of calculating the Asset Coverage Ratio as it
applies to the Borrower;
(ii) a Borrower may not be a lender of an Interfund Loan at any time
during which the Borrower has any Loan outstanding;
(iii) if, at any time, an Interfund Loan is outstanding to a Borrower that
has any Loans outstanding as well, and if at such time the Asset Coverage Ratio
for the Borrower shall be less than the required Asset Coverage Ratio for the
Borrower pursuant to this Agreement, then the Borrower shall repay such
outstanding Interfund Loans and Loans on a pro rata basis and on the same
repayment schedule (subject, in any and all event, to such Borrower's obligation
to prepay in accordance with 2.6(b) hereof) to the extent necessary to ensure
that the Asset Coverage Ratio of all borrowings of the Borrower after such
payments is in compliance with applicable covenants concerning minimum Asset
Coverage Ratios set forth in this Agreement;
(iv) if any payment with respect to an Interfund Loan would cause the
Asset Coverage Ratio for a Borrower to be less than the required Asset Coverage
Ratio for such Borrower pursuant to this Agreement, then the Borrower shall make
any payments with respect to such outstanding Interfund Loans on a pro rata
basis with payments with respect to Loans to the extent necessary to ensure that
the Asset Coverage Ratio of all borrowings of such Borrower after such payments
is in compliance with applicable covenants concerning minimum Asset Coverage
Ratios set forth in this Agreement;
(v) a default by a Borrower with respect to an Interfund Loan shall
constitute an Event of Default with respect to the Borrower for purposes of this
Agreement;
(vi) if a Default or Event of Default with respect to a Borrower has
occurred and is continuing under this Agreement other than as specified above in
Section 2.17(a)(iii), then any payments made with respect to outstanding
Interfund Loans shall be made on a pro rata basis with payments with respect to
Loans until such Default or Event of Default is cured or waived;
(vii) if at any time a Borrower should secure an Interfund Loan or
Interfund Loans with collateral, then the Borrower shall collateralize each Loan
to such Borrower under this Agreement (I) in substantially the same manner and
to substantially the same extent as is required with respect to each Interfund
Loan to the Borrower, as more particularly described in the Interfund Lending
Exemptive Order and (II) with collateral having substantially the same liquidity
and substantially similar credit characteristics as that of the collateral
securing such Interfund Loan or Interfund Loans, provided that the collateral
coverage percentage ratio for Loans shall not be less than the greater of (x)
102% or (y) the collateral coverage ratio for Interfund Loans; and
(viii) for purposes of calculating the Asset Coverage Ratio of a Borrower,
the amount equal to the aggregate value of the collateral securing an Interfund
Loan or Loan minus the amount of such Interfund Loan or Loan, respectively,
shall be subtracted from the value of Total Assets in the numerator of such
Asset Coverage Ratio.
22
(b) Without otherwise limiting the purposes for which proceeds of a Loan
may be used as specified in Section 5.8 of this Agreement, a Borrower shall be
expressly permitted to use the proceeds of a Loan to repay an outstanding
Interfund Loan of the Borrower, subject to the conditions set forth in paragraph
(a) of this Section 2.17 and the other conditions of this Agreement (including
without limitation Section 5.8 hereof).
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, each Fund, on behalf of itself and if
applicable on behalf of each investment portfolio thereof that is a Borrower,
hereby represents and warrants to the Administrative Agent and each Lender that
(it being agreed that each Fund represents and warrants only to matters with
respect to itself and if applicable each Borrower that is an investment
portfolio thereof):
3.1 Financial Condition. For each Borrower, the statement of assets and
liabilities as of such Borrower's most recently ended fiscal year for which
annual reports have been prepared and the related statements of operations and
of changes in net assets for the fiscal year ended on such date, copies of which
financial statements, certified by the independent public accountants for the
Fund, have heretofore been delivered to each Lender, fairly present, in all
material respects, the financial position of such Borrower as of such date and
the results of its operations for such period, in conformity with GAAP (as
consistently applied).
3.2 No Change. For each Borrower, since the date of the statement of
assets and liabilities for the most recently ended fiscal year for which annual
reports have been prepared for such Borrower (such date, the "Reporting Date"),
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. The
Administrative Agent and the Lenders acknowledge that Deutsche IMA has undergone
a change of control since the Reporting Date and, based upon the information
that the Borrowers have made available to them, do not deem such change of
control, in and of itself, to have resulted in a Material Adverse Effect. (For
the avoidance of doubt, the representation contained in this Section 3.2 shall
be made on and as of the date hereof only and shall not be brought down at the
time of any borrowing hereunder on any subsequent date.)
3.3 Existence; Compliance with Law. Each Fund (a) is duly organized,
validly existing and, with respect to each Fund that is not a Massachusetts
business trust, in good standing, under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority as to those Funds that
are organized as corporations, and the trust power and authority as to those
Funds that are organized as trusts; and in each case the legal right to own its
property and to conduct the business in which it is currently engaged, (c) is
duly qualified as a foreign corporation or business trust and, if a corporation,
is in good standing under the laws of each jurisdiction where its ownership of
property or the conduct of its business requires such qualification and (d) is
in compliance with all Requirements of Law, except to the extent that the
failure to comply therewith, and with clause (c) of this Section 3.3, could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect. The
shares of each Fund have been validly authorized.
23
3.4 Power; Authorization; Enforceable Obligations. Each Fund, acting on
its own behalf and if applicable on behalf of each investment portfolio thereof
that is a Borrower, has the corporate power and authority as to those Funds that
are organized as corporations and the trust power and authority as to the Funds
that are organized as trusts, and in each case the legal right, to execute,
deliver and perform the Loan Documents to which it is a party and to borrow
hereunder and thereunder on its own behalf or if applicable on behalf of each
investment portfolio thereof that is a Borrower, and has taken all necessary
action to authorize the borrowings on the terms and conditions of this Agreement
and any Notes and to authorize the execution, delivery and performance of the
Loan Documents to which it is a party including, but not limited to, receiving
the approval of the majority of non-interested members of the board of trustees
or board of directors of each Fund as to entering into the transactions
contemplated hereby. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Loan Documents to which
such Fund, on its own behalf or if applicable on behalf of the investment
portfolios thereof which are Borrowers, is a party. This Agreement has been, and
each other Loan Document to which a Fund is a party will be, duly executed and
delivered by such Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof that are Borrowers. This Agreement constitutes,
and each other Loan Document to which a Fund is a party when executed and
delivered will constitute, a legal, valid and binding obligation of such Fund
(individually and on behalf of each Borrower as applicable) enforceable against
such Fund (individually and on behalf of each Borrower as applicable) in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents to which each Fund, on its own behalf or if applicable on behalf of an
investment portfolio thereof that is a Borrower, is a party, the borrowings
hereunder and the use of the proceeds thereof (i) will not violate any material
Requirement of Law (including, without limitation, the 1940 Act) or material
Contractual Obligation of any Fund or any Borrower and (ii) will not result in,
or require, the creation or imposition of any material Lien on any of their
respective material properties or revenues pursuant to any such Requirement of
Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of each Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, threatened by or against such
Fund or such Borrowers or against any of their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be expected to
have a Material Adverse Effect.
3.7 No Default. No Fund or any Borrower is in default under or with
respect to any of its Contractual Obligations in any respect that could
reasonably be expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
24
3.8 Ownership of Property; Liens. Each Fund, on its own behalf or if
applicable on behalf of the investment portfolios thereof which are Borrowers,
has good title to all its property, and none of such property is subject to any
Lien except as permitted by Section 6.3.
3.9 No Burdensome Restrictions. There exists no Requirement of Law or
Contractual Obligation of any Fund or any Borrower, which could reasonably be
expected to have a Material Adverse Effect.
3.10 Taxes. Each Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, has filed all material tax
returns which, to the knowledge of such Fund and such Borrowers, are required to
be filed and has paid all taxes shown to be due and payable on said returns or
on any assessments made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any Governmental
Authority (other than the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of such Fund or
such Borrowers); no material tax Lien has been filed, and, to the knowledge of
such Fund and such Borrowers, no claim is being asserted, with respect to any
such tax, fee or other charge.
3.11 Federal Regulations. If requested by any Lender or the Administrative
Agent from time to time, each Fund, on its own behalf or if applicable on behalf
of the investment portfolios thereof which are Borrowers, will furnish to the
Administrative Agent and each Lender 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 provisions of Regulations T, U
or X in connection with the execution and delivery of the Agreement and the
making of the Loans hereunder. No part of the proceeds of any Loans made
hereunder will be used in a manner that violates Regulation U.
3.12 ERISA. Neither any Fund, any Borrower nor any Commonly Controlled
Entity has currently or has had at any time any liability or obligation under
ERISA or the Code with respect to any Plan maintained by any of them that could
reasonably be expected to have a Material Adverse Effect.
3.13 Certain Regulations. Neither any Fund nor any Borrower is subject to
regulation under any Federal or State statute or regulation (other than
Regulations U and X of the Board of Governors of the Federal Reserve System and
the 1940 Act) which limits its ability to incur Indebtedness, or if so subject
is in compliance with such statutes and regulations.
3.14 Subsidiaries. (a) Except as provided in subparagraph (b) of this
section, no Fund has any Subsidiaries and no equity investment or interest in
any other Person (other than portfolio securities that have been acquired in the
ordinary course of business).
25
(b) SMFI represents that it holds all of the issued and outstanding
shares of stock of SPMI and such shares are not subject to any Lien, pledge or
other encumbrance except as may be permitted by Section 6.3.
3.15 Registration of the Fund. Each Fund is a registered open-end or
closed-end management investment company under the 1940 Act.
3.16 Offering in Compliance with Securities Laws. Each Fund that is an
open-end investment company, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, has issued all of its
securities pursuant to an effective Registration Statement on Form N-1A, and
each Fund that is a closed-end investment company has issued all of its
securities pursuant to an effective Registration Statement on Form N-2, or, in
each case, as may otherwise be required by Federal and State securities laws
applicable thereto in all material respects.
3.17 Investment Policies. Each Borrower is in compliance in all material
respects with all of its fundamental Investment Policies.
3.18 Permission to Borrow. Each Borrower is permitted to borrow hereunder
pursuant to the limits and restrictions set forth in its Prospectus.
3.19 Accuracy of Information; Electronic Information. (a) All factual
information heretofore or contemporaneously furnished by or on behalf of each
Fund, on its own behalf or if applicable on behalf of the investment portfolios
thereof which are Borrowers, in writing to the Administrative Agent or any
Lender for purposes of or in connection with this Agreement or any transaction
contemplated hereby (in each case, as amended, superseded, supplemented or
otherwise modified with the knowledge of the Administrative Agent or such
Lender) is, and all other such factual information hereafter furnished by or on
behalf of such Fund and such Borrowers to the Administrative Agent or any Lender
(in each case, as amended, superseded, supplemented or otherwise modified with
the knowledge of the Administrative Agent or such Lender) will be, true and
accurate in every material respect on the date as of which such information is
dated or certified, and to the extent such information was furnished to the
Administrative Agent or such Lender heretofore or contemporaneously, as of the
date of execution and delivery of this Agreement by the Administrative Agent or
such Lender, and such information is not, or shall not be, as the case may be,
incomplete by omitting to state any material fact necessary to make such
information not misleading.
(b) Neither the Administrative Agent nor any Lender shall be liable to any
Fund or Borrower for any damages arising from its respective use of information
or other materials obtained through electronic, telecommunications or other
information transmission systems, which damages are waived and forgiven.
3.20 Affiliated Persons. To the best knowledge of each Fund, such Fund,
and if applicable each portfolio thereof that is a Borrower, is not an
"affiliated person" (as defined in the 1940 Act) of the Administrative Agent or
any Lender; provided, however, that for purposes of this Section 3.20, (i) the
record ownership, without the power to vote, of five percent or more
26
of the outstanding voting securities of any Person shall be deemed not to
constitute the direct or indirect ownership of, control of, or holding with the
power to vote of, such securities, and (ii) securities of such Fund or such
Borrower, as the case may be, held of record by the Administrative Agent or any
Lender shall be deemed conclusively, absent written notice to the contrary, to
be held without the power to vote such securities.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of each Lender to make the
initial Loan requested to be made by it is subject to the satisfaction, prior to
or concurrently with the making of such Loan, of the following conditions
precedent (it being agreed that each Fund need only satisfy the following
conditions precedent with respect to itself and if applicable each Borrower that
is an investment portfolio thereof):
(a) Executed Agreement. The Administrative Agent shall have received
this Agreement, executed and delivered by a duly authorized officer of
each Fund, on its own behalf or if applicable on behalf of the investment
portfolios thereof which are Borrowers, with a counterpart for each
Lender.
(b) Notes. The Administrative Agent shall have received Notes for
each Lender which has requested Notes pursuant to Section 2.5(e), executed
and delivered by a duly authorized officer of each Fund, on its own behalf
or if applicable on behalf of the investment portfolios thereof which are
Borrowers.
(c) Related Agreements. The Administrative Agent shall have
received, with a copy for each Lender, true and correct copies, certified
as to authenticity by a Responsible Officer of each Fund, of (i) the most
recent Prospectus for each Borrower, (ii) any amendments since the
Original Closing Dates to the Custody Agreement of each Fund, with respect
to each Borrower if applicable, (iii) any amendments since the Original
Closing Dates to the Investment Management Agreement of each Fund, with
respect to each Borrower if applicable, (iv) the current Statement of
Additional Information for each Borrower and (v) if requested by the
Lenders, the current Registration Statement for each Borrower, the most
recent annual and semi-annual financial reports for each Borrower and such
other documents or instruments as may be reasonably requested by the
Administrative Agent, including, without limitation, a copy of any debt
instrument, security agreement or other material contract to which any
Borrower may be a party.
(d) Proceedings of the Fund and the Borrowers. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy of
the resolutions, in form and substance satisfactory to the Administrative
Agent, of the board of trustees or directors, as the case may be, of each
Fund, on its own behalf or if applicable on behalf of the investment
portfolios thereof which are Borrowers, authorizing (i) the execution,
delivery and performance of this Agreement and the other Loan Documents to
which each Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, is a party and (ii) the
borrowings contemplated hereunder, certified by a Responsible Officer of
such Fund as of the Closing Date, which certificate shall be in
27
form and substance satisfactory to the Administrative Agent and shall
state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded and are in full force and effect.
(e) Incumbency Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a Certificate of each Fund,
on its own behalf or if applicable on behalf of the investment portfolios
thereof which are Borrowers, dated the Closing Date, as to the incumbency
and signature of the officers of such Fund executing any Loan Document
executed by a Responsible Officer of the Fund, satisfactory in form and
substance to the Administrative Agent.
(f) Organizational Documents. The Administrative Agent shall have
received copies of any amendments since the Original Closing Dates to each
Fund's charter or certificate and Bylaws, certified as of the Closing Date
as complete and correct copies thereof by a Responsible Officer of such
Fund, including without limitation those organizational documents
establishing the investment portfolios thereof which are Borrowers.
(g) Legal Opinions. The Administrative Agent shall have received,
with a counterpart for each Lender, the executed legal opinion of counsel
to each Fund and each Borrower, in the form of Exhibit 4.1(g) hereto. Such
legal opinion shall include a New York law enforceability opinion and
shall cover such other matters incident to the transactions contemplated
by this Agreement as the Administrative Agent or any Lender may reasonably
require.
(h) Financial Information. The Administrative Agent shall have
received, with a copy for each Lender, the most recent publicly available
financial information of the kind described in Sections 5.1 and 5.2 of
this Agreement (which includes a list of portfolio securities) for each
Borrower.
(i) Termination of other Credit Facilities. Any other credit
facility between the Lenders and any of the Borrowers shall have been
terminated, including without limitation the credit facilities that are
the subject of (i) that certain Amended and Restated Credit Agreement
dated as of November 22, 1999 by and among the Administrative Agent,
several of the Borrowers and the Lenders hereto and (ii) that certain
Credit Agreement dated as of April 28, 1999 by and among the
Administrative Agent, several of the Borrowers and the Lenders hereto. The
termination of such credit facilities is addressed further in Section 9.17
hereof. All other credit facilities to which the requesting Borrower is a
party shall have been terminated.
4.2 Conditions to Each Loan. The agreement of each Lender to make any Loan
requested by a particular Fund, on its own behalf or if applicable on behalf of
an investment portfolio thereof that is a Borrower, to be made by it on any date
(including, without limitation, its initial Loan) is subject to the satisfaction
of the following conditions precedent:
28
(a) Representations and Warranties. Each of the representations and
warranties (other than Section 3.2) made by a Fund, on its own behalf and
if applicable on behalf of each investment portfolio thereof which is a
Borrower, in or pursuant to the Loan Documents shall be true and correct
in all material respects on and as of such date as if made on and as of
such date.
(b) No Default. No Default or Event of Default shall have occurred
with respect to the requesting Fund, on its own behalf or if applicable on
behalf of the investment portfolio thereof which is a Borrower, and be
continuing on such date or after giving effect to the Loans requested to
be made on such date.
(c) Maximum Borrowing Limitation. After giving effect to the
proposed Loans to be made, the Asset Coverage Ratio for all borrowings of
such Borrower (x) if not a Designated Borrower shall not be less than 300%
and (y) if a Designated Borrower shall not be less than its applicable
Designated Borrower Asset Coverage Ratio Percentage; and the requesting
Borrower shall not have violated any Requirements of Law (except such
violations as could not reasonably be expected to have a Material Adverse
Effect) or exceeded the borrowing limits set forth in its Prospectus
and/or Registration Statement or the 1940 Act.
(d) Regulation U; Form U-1. The Lenders shall be satisfied that the
Loans and the use of proceeds thereof comply in all respects with
Regulation U. To the extent required by Regulation U, the Administrative
Agent shall have received a copy of either (i) FR Form U-1, duly executed
and delivered by each Fund, on its own behalf or if applicable on behalf
of the investment portfolios thereof which are Borrowers and completed for
delivery to each Lender, in form acceptable to the Administrative Agent,
or (ii) a current list of the assets of each Borrower (including all
"margin stock" (as defined in Regulation U) from each Borrower), in form
acceptable to the Administrative Agent and in compliance with Section
221.3(c)(2) of Regulation U.
(e) Net Asset Value. (i) SFASC shall have provided information to
the Administrative Agent, or in the case of Swing Line Loans, to the Swing
Line Lender, as to the requesting Borrower's net asset value as of a date
not more than two Business Days prior to the date of the making of the
proposed Loan, and (ii) the net asset value for such requesting Borrower
shall be at least $2,000,000.
(f) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received such other documents and
legal opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
Each borrowing by a Borrower hereunder shall constitute a representation and
warranty by the Fund of which such Borrower is a portfolio, on its own behalf
and on behalf of such ▇▇▇▇▇▇▇▇,
29
as of the date thereof that the conditions contained in this Section have been
satisfied with respect to such Borrower, and the Fund of which it is an
investment portfolio if applicable.
SECTION 5. AFFIRMATIVE COVENANTS
Each Fund, on its own behalf or if applicable on behalf of the investment
portfolios thereof which are Borrowers, hereby agrees that, so long as (i) the
Commitments remain in effect with respect to it or any Borrower or (ii) any
amount is owing by it or any Borrower to any Lender or the Administrative Agent
hereunder or under any other Loan Document, it and any Borrower that is a part
of the Fund shall (it being agreed that the Fund covenants only to matters with
respect to itself and if applicable each Borrower that is an investment
portfolio thereof):
5.1 Financial Statements. Furnish to the Administrative Agent (with copies
for each Lender):
(a) as soon as available and in any event within 75 days after the
end of each fiscal year of such Borrower, a statement of assets and
liabilities of such Borrower as at the end of such fiscal year, a
statement of operations for such fiscal year, a statement of changes in
net assets for such fiscal year and the preceding fiscal year, a portfolio
of investments as at the end of such fiscal year and the per share and
other data for such fiscal year prepared in accordance with GAAP (as
consistently applied) and all regulatory requirements, and all presented
in a manner acceptable to the Securities and Exchange Commission or any
successor or analogous Governmental Authority by PricewaterhouseCoopers,
Ernst & Young or any other independent certified public accountants of
recognized standing;
(b) as soon as available and in any event within 60 days after the
close of the first six-month period of each fiscal year of such Borrower,
a statement of assets and liabilities as at the end of such six-month
period, a statement of operations for such six-month period, a statement
of changes in net assets for such six-month period and a portfolio of
investments as at the end of such six-month period, all prepared in
accordance with regulatory requirements and all certified (subject to
normal year end adjustments) as to fairness of presentation, GAAP (as
consistently applied) and consistency by a Responsible Officer; and
(c) as soon as available, but in any event not later than 10 days
after the end of each month of each fiscal year of each Borrower, the net
asset value sheet of such Borrower as at the end of such month, in the
form and detail similar to those customarily prepared by the Fund's
management for internal use and reasonably satisfactory to the
Administrative Agent, certified by either a Responsible Officer or the
President, Treasurer or Vice President of the SFASC (or any Person (a
"Designated Person") designated by a Responsible Officer to give
instructions regarding the request for, or repayment of, Swingline Loans,
the names and titles of which Persons shall have been provided to the
Administrative Agent by a Responsible Officer in advance), as being fairly
stated in all material respects; provided, however, that if any Borrower
has Revolving Credit Loans
30
outstanding, such Borrower shall provide to the Administrative Agent for
each Lender (i) such net asset value sheet described above in this Section
and (ii) a certificate of either a Responsible Officer or such an officer
of SFASC or Designated Person showing in reasonable detail the
calculations supporting such Borrower's compliance with Section 6.1,
within two Business Days after the end of each calendar week so long as
any Loans to such Borrower remain outstanding;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 Certificates; Other Information. Furnish to the Administrative Agent
(with copies for each Lender):
(a) concurrently with the delivery of the financial statements
referred to in Sections 5.1(a), (b) and (c) and the quarterly report in
Section 5.2(c), a certificate of a Responsible Officer stating that (i) to
the best of such Officer's knowledge, such Borrower during such period has
observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and the other Loan
Documents to be observed, performed or satisfied by it, and (ii) no
Default or Event of Default has occurred and is continuing except as
specified in such certificate;
(b) within five days after they are sent, copies of all financial
statements and reports which each Borrower sends to its investors, and
within five Business Days after they are filed, copies of all financial
statements and reports which each Borrower may make to, or file with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority;
(c) as soon as available, but in any event not later than ten days
after the end of each quarter, a certificate of either a Responsible
Officer or the President, Treasurer or Vice President of SFASC (i) stating
that the list of each Borrower's portfolio securities attached to such
certificate is true and correct and (ii) showing in reasonable detail the
calculations supporting such Borrower's compliance with Section 6.1; and
(d) promptly, such additional financial and other information as any
Lender may from time to time reasonably request, including, but not
limited to, copies of all changes to each Borrower's Prospectus and
Registration Statement.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent (beyond any allowable grace
periods therefor), as the case may be, all such Borrower's Contractual
Obligations, 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 failure to timely make payment thereof could not
reasonably be expected to have a Material Adverse Effect.
31
5.4 Conduct of Business and Maintenance of Existence. Except as otherwise
permitted herein, continue to engage in (i) such Borrower's investment business
in accordance with its Investment Policies, Prospectus and Registration
Statement and preserve, renew and keep in full force and effect its existence
and (ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business except
to the extent that failure to take such actions could not, in the aggregate, be
reasonably expected to have a Material Adverse Effect; comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, be reasonably expected
to have a Material Adverse Effect; maintain at all times its status as an
investment company or a series or portfolio of an investment company registered
under the 1940 Act; maintain at all times its current custodians, or replacement
custodians which are a bank or trust company organized under the laws of the
United States or a political subdivision thereof having assets of at least
$10,000,000,000 and a long-term debt or deposit rating of at least A from S&P or
A2 from ▇▇▇▇▇'▇.
5.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in such Borrower's business, if any, in good working order and
condition; maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least such
risks as are usually insured against in the same general area by entities
engaged in the same or similar business or as may otherwise be required by the
Securities and Exchange Commission or any successor or analogous Governmental
Authority (including, without limitation, (a) fidelity bond coverage as shall be
required by Rule 17g-1 promulgated under the 1940 Act or any successor provision
and (b) errors and omissions insurance); and furnish to each Lender, upon
written request, full information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all material Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of (i) the Administrative Agent, upon its own discretion or at
the reasonable request of any Lender, and (ii) upon the occurrence and during
the continuance of an Event of Default, any Lender, 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 conduct
such visit not more than once a year.
5.7 Notices. Promptly give notice to the Administrative Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default with respect
to such Borrower;
32
(b) any (i) default or event of default under any Contractual
Obligation of such Borrower or (ii) litigation, investigation or
proceeding which may exist at any time between such Fund, on its own
behalf or if applicable on behalf of the investment portfolios thereof
which are Borrowers 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, or the
Fund of which it is an investment portfolio if applicable, in which the
amount reasonably determined to be at risk is more than 5% of such
Borrower's net assets and not covered by insurance or in which injunctive
or similar relief is sought;
(d) any change in such Borrower's Prospectus or Registration
Statement involving Investment Policies which could materially increase
the risks to the shareholders of the Borrower or which would increase the
borrowing limits provided for in such Borrower's Prospectus;
(e) any development or event which could reasonably be expected to
have a Material Adverse Effect on any such Borrower; and
(f) any change in the Borrower's custodian.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and if appropriate stating what action such Fund or such Borrower proposes to
take with respect thereto.
5.8 Purpose of Loans. Use the proceeds of the Loans for temporary or
emergency purposes, including, without limitation, funding of shareholder
redemptions or the payment of dividends (i) which are required by law or in
connection with the maintenance of the Borrower's tax status or (ii) for the
purpose of avoiding imposition of federal excise tax. Without limiting the
foregoing, no Borrower will, directly or indirectly, use any part of such
proceeds for any purpose which would violate any provision of its Registration
Statement or any applicable statute, regulation, order or restriction, including
but not limited to Regulation U; provided, however, that neither the
Administrative Agent nor any Bank shall have any responsibility as to the use of
any of such proceeds.
5.9. Payment of Taxes. File all material tax returns which, to the
knowledge of such Fund and such Borrowers, are required to be filed and pay all
taxes shown to be due and payable on said returns or on any assessments made
against it or any of its property and all other taxes, levies, fees or other
charges imposed on it or any of its property by any Governmental Authority;
provided, however, that no such tax, assessment, charge or levy need be paid and
discharged so long as the validity thereof shall be contested in good faith by
appropriate proceedings and there shall have been set aside on the books of such
Person adequate reserves in accordance with GAAP applied with respect thereto.
SECTION 6. NEGATIVE COVENANTS
33
Each Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, hereby agrees that, so long
as (i) the Commitments remain in effect with respect to it or any such Borrower
or (ii) any amount is owing by it or any such Borrower to any Lender or the
Administrative Agent hereunder or under any other Loan Document, it and any such
Borrower shall not, without the prior written consent of the Lenders, directly
or indirectly (it being agreed that each Fund agrees only to matters with
respect to itself and if applicable each Borrower that is an investment
portfolio thereof):
6.1 Financial Condition Covenant. Permit the Asset Coverage Ratio of such
Borrower to be less than (x) for all Borrowers other than Designated Borrowers,
300%, or (y) for each Designated Borrower, the Designated Borrower Asset
Coverage Ratio Percentage for such Borrower; or in either case allow borrowings
and/or Indebtedness of such Borrower to exceed the limits set forth in such
Borrower's Prospectus or allow borrowings and/or Indebtedness to exceed the
requirements of the 1940 Act.
6.2 Limitation on Indebtedness; Derivatives. (a) Create, incur, assume or
suffer to exist any Indebtedness of such Borrower or any Subsidiary, except
Indebtedness of such Borrower or Subsidiary incurred (i) under this Agreement
and the Notes, (ii) in the ordinary course of business of such Borrower or such
Subsidiary, (iii) pursuant to an Interfund Lending arrangement or (iv) in the
form of Reverse Repurchase Transactions, dollar rolls or other transactions
entered into primarily for investment purposes which have the effect of
borrowing and, in each case, which is not otherwise prohibited by law, is in the
ordinary course of business, is not in contravention of such ▇▇▇▇▇▇▇▇'s
Prospectus, or in SPMI's certificate of incorporation or by-laws, with respect
to SPMI, and is reflected properly in the calculation of the Asset Coverage
Ratio.
(b) Invest in, or incur Indebtedness or other liability to any Person with
respect to, any Swap Obligation or derivative instrument (including without
limitation any swap, collar, cap, puts, calls, equity derivative or
mortgage-backed or debt-backed derivative) unless each of the following is true:
(i) such Swap Obligation or derivative instrument, if marked-to-market on a net
daily basis (or marked to value in a manner reasonably acceptable to the
Administrative Agent), is appropriately reflected in the calculation of Asset
Coverage Ratio, and (ii) the purpose of the investment in such Swap Obligation
or derivative instrument is to augment the capital appreciation or current
income of or by such Borrower, or to hedge or manage the risk of various current
or future exposures of the Borrower.
6.3 Limitation on Liens. Create, incur, assume or suffer to exist any Lien
upon any of the property, assets or revenues, whether now owned or hereafter
acquired of such Borrower or such Subsidiary, except for (i) Liens for taxes not
yet due or which are being contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on the books
of such Borrower or such Subsidiary in conformity with GAAP, (ii) Liens arising
in connection with claims for advances made by or payments due to any custodian
under the Custody Agreements set forth in Schedule IV hereto, (iii) Liens
created, incurred, assumed or suffered to exist in compliance with the
Registration Statement or organizational documents of such Borrower or such
Subsidiary, (iv) Liens arising under an Interfund Lending
34
arrangement and (v) any other Liens created, incurred, assumed or suffered to
exist in the ordinary course of such ▇▇▇▇▇▇▇▇'s or Subsidiary's business, and
which, in each case, are not otherwise prohibited by any Requirement of Law.
6.4 Limitation on Guarantee Obligations. Create, incur, assume or suffer
to exist any material Guarantee Obligation of such Borrower, except as may occur
in the ordinary course of such Borrower's business and which is not otherwise
prohibited by any Requirement of Law.
6.5 Limitation on Fundamental Changes. Enter into, or permit any of its
Subsidiaries to enter into, any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself or such Borrower (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of substantially all of the property, business or assets of
itself, such Borrower, or such Subsidiary in a single transaction or in related
transactions, or make any material change in its present method of conducting
business; except that, so long as no Default or Event of Default shall have
occurred and be continuing, a Borrower will be permitted to (i) enter into any
merger, consolidation or amalgamation with one or more Borrowers or, with the
consent of the Lenders, one or more other Persons if, in each case, Deutsche IMA
or one of its affiliates is the investment advisor to the entity surviving such
merger, consolidation or amalgamation and such entity assumes the obligations of
such Borrower under the Loan Documents and complies with Applicable law and with
the provisions hereof or (ii) terminate all Commitments with respect to such
Borrower and liquidate, wind up or convey, sell, lease, assign, transfer or
otherwise dispose of all or substantially all of the property, business or
assets of such Borrower if it repays all Loans made to it prior to liquidation,
together with all other amounts due and owing hereunder. Any Borrower
undertaking any action described in clause (ii) above shall comply with the
termination provisions described in Section 2.4 hereof.
6.6 Limitation on Distributions. At any time, make any distribution to the
shareholders of such Borrower, whether now or hereafter existing, either
directly or indirectly, whether in cash or property or in obligations of the
Borrower if such distribution results in a Default or Event of Default. During
the occurrence and continuation of an Event of Default specified in paragraphs
(a) or (e) of Section 7 or an Event of Default arising in connection with a
Borrower's having failed to comply with Section 6.1, make any distribution to
the shareholders of such Borrower, whether now or hereafter existing, either
directly or indirectly, whether in cash or property or in obligations of the
Borrower. Notwithstanding the foregoing, nothing herein shall prevent a Borrower
from making (i) distributions that are required to enable such Borrower to
qualify as a "regulated investment company" under Sections 851-855 of the Code
or otherwise to minimize or eliminate federal or state income or excise taxes
payable by such Borrower, or (ii) distributions that are required by any other
Requirement of Law.
6.7 Limitation on Investments, Loans and Advances. Make any advance, loan,
extension of credit or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of or any assets constituting a business
unit of or make any other investment in, any Person, except those consistent
with such Borrower's Investment Policies.
6.8 Limitation on Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any
35
service, with any Affiliate unless such transaction is (a) not otherwise
prohibited under this Agreement and not in violation of the 1940 Act, (b) in the
ordinary course of such Borrower's business, and (c) upon fair and reasonable
terms no less favorable to such Borrower than it would obtain in a comparable
arm's length transaction with a Person which is not an Affiliate.
6.9 Limitation on Negative Pledge Clauses. Enter into with any Person any
agreement, other than this Agreement or the other Loan Documents, which
prohibits or limits the ability of such Borrower to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, except such agreements entered into in the
ordinary course of such ▇▇▇▇▇▇▇▇'s business and which are not otherwise
prohibited by any Requirement of Law.
6.10 Limitation on Changes to Investment Policies. Except as may be
required by law, make any amendment to the Prospectus or Registration Statement
of such Borrower (i) relating to changes in the fundamental Investment Policies
of such Borrower, or (ii) increasing the borrowing limits specified therein, in
each case without the consent of the Required Lenders, which consent shall not
be unreasonably withheld.
6.11 Permitted Activities. With respect to SMFI, SMFI shall not (a) permit
SPMI to engage in any business or activity other than the buying or selling of
gold and other precious metals and entering into lending or derivatives
transactions relating thereto in the ordinary course of business and (b) itself
engage in any business or activity other than (i) acting as a holding company
for SPMI and (ii) acting as a registered open-end management investment company
under the 1940 Act.
6.12 Sale of Assets, Consolidation, Merger, Etc. With respect to SPMI,
SMFI shall not permit SPMI to consolidate with, or merge into, any Person other
than SMFI or ▇▇▇▇▇▇▇ Gold Fund (a Borrower hereunder), or sell, lease, transfer
or otherwise dispose of its assets, except for sales in the ordinary course of
business.
SECTION 7. EVENTS OF DEFAULT
Subject to the final paragraph of this Section 7, if any of the following
events shall occur and be continuing with respect to any Fund, on its own behalf
or if applicable on behalf of the investment portfolios thereof which are
Borrowers, as the case may be (each an "Event of Default"):
(a) A Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms thereof or hereof, including without
limitation any failure to make a mandatory prepayment due pursuant to the
provisions of Section 2.6(b); or a Borrower shall fail to pay any interest
on any Loan, or any other amount payable hereunder, within five days after
any such interest or other amount becomes due in accordance with the terms
thereof or hereof; or
36
(b) Any representation or warranty made or deemed made by any Fund,
on its own behalf or if applicable on behalf of the investment portfolios
thereof which are Borrowers, or made or deemed made at such Fund's or
Borrower's request, herein or in any other Loan Document or which is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or
any such other Loan Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) A Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs
(a) and (b) of this Section), and such default shall continue unremedied
for a period of 30 days; or solely in the case of such default arising
under Sections 5.4, 5.7 or 6.5 hereof, 5 Business Days; or solely in the
case of such default arising under Section 5.2(b), 10 days from the
delivery of notice thereof by the Administrative Agent to such Fund
(unless the Administrative Agent shall have reasonably determined that the
non-delivery of information giving rise to such default under Section
5.2(b) shall have materially impaired the rights of the Lenders hereunder,
in which case such default shall ripen into an Event of Default if
unremedied after 30 days); or
(d) A Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, shall (i) default in
any payment of principal of or interest on any Indebtedness (other than
the Loans), Interest Rate Agreement, Swap Obligation or in the payment of
any Guarantee Obligation, beyond the grace period (not to exceed 30 days),
if any, provided in the instrument or agreement under which such
Indebtedness, Interest Rate Agreement, Swap Obligation or Guarantee
Obligation was created, if the aggregate amount of the Indebtedness,
Interest Rate Agreement, Swap Obligations and/or Guarantee Obligations in
respect of which such default or defaults shall have occurred is at least
5% of such Fund's or such Borrower's net assets; or (ii) default in the
observance or performance of any other agreement or condition relating to
any such Indebtedness, Interest Rate Agreement, Swap Obligation or
Guarantee Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur
or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation,
Interest Rate Agreement, or Swap Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness, Interest
Rate Agreement or Swap Obligation to become due prior to its stated
maturity or such Guarantee Obligation to become payable if the aggregate
amount of the Indebtedness, Interest Rate Agreement, Swap Obligations
and/or Guarantee Obligations subject to becoming so due or so payable is
at least 5% of such Borrower's or Fund's net assets; or
(e) (i) A Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, shall commence any
case, proceeding or other action with respect to itself or any such
Borrower (A) under any then applicable law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization or
37
relief of debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or a Fund, on its own behalf or if applicable on behalf of any
investment portfolio thereof which is a Borrower, shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against such a Fund or Borrower, any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or appointment
and (B) remains undismissed, undischarged, unstayed, unvacated or unbonded
pending appeal within 60 days from the entry thereof; or (iii) there shall
be commenced against a Fund, on its own behalf or if applicable on behalf
of the investment portfolios thereof which are Borrowers, any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) such a Fund
or Borrower shall take any action in material furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) a Fund, on its
own behalf or if applicable on behalf of the investment portfolios thereof
which are Borrowers, shall not, or shall be unable to, pay its debts as
they become due for ten (10) days after written notice thereof to such
Fund or actual knowledge thereof by such Fund, or shall admit in writing
its inability to pay its debts as they become due; or
(f) Either a Borrower or any Commonly Controlled Entity of such
Borrower incurs any liability to any Plan maintained by any of them which
could reasonably be expected to have a Material Adverse Effect; or
(g) One or more judgments or decrees shall be entered against a
Fund, on its own behalf or if applicable on behalf of the investment
portfolios thereof which are Borrowers, involving in the aggregate a
liability (not fully covered by insurance or otherwise paid or discharged)
of 5% or more of such Fund's or such ▇▇▇▇▇▇▇▇'s net assets, and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
(h) Unless consented to by the Lenders, Deutsche IMA or a Person
directly controlling, controlled by, or under common control with Deutsche
IMA shall no longer act as investment advisor for a Borrower; or
(i) A Fund's or a Borrower's registration under the 1940 Act shall
lapse or be suspended (or proceedings for such purpose shall have been
instituted); or
(j) A Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, shall fail to
materially comply with its Investment Policies in a manner which the
Required Lenders, in their sole reasonable discretion, determine could
reasonably be expected to have a Material Adverse Effect and such
38
default (or the Material Adverse Effect arising therefrom if any) shall
continue unremedied for a period of 3 days;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (e) of this Section with respect to such Borrower (or the Fund
acting on behalf of one or more Borrowers), automatically the Commitments
available to such Borrower (or all of the Borrowers which are investment
portfolios of such Fund) shall immediately terminate and the Loans hereunder
made to any such Borrower (with accrued interest thereon) and all other amounts
owing under this Agreement by such Borrower shall immediately become due and
payable, and (B) if such event is any other Event of Default with respect to
such Borrower, any or all of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
such Borrower declare the Commitments available to such Borrower (or all of the
Borrowers which are investment portfolios of such Fund if such Event of Default
is the Fund Event of Default (as defined below)) to be terminated forthwith,
whereupon such Commitments shall immediately terminate; and (ii) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
such Borrower, declare the Loans to such Borrower (with accrued interest
thereon) and all other amounts owing under this Agreement by such Borrower (or
all of the Borrowers which are investment portfolios of such Fund if such Event
of Default is a Fund Event of Default) to be due and payable forthwith,
whereupon the same shall immediately become due and payable. Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
Notwithstanding any other provision herein to the contrary, Defaults and
Events of 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 with
respect 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 that is an investment portfolio of such Fund
shall constitute a Default or Event of Default, as the case
may be, only with respect to the Borrower(s) implicated in, or
affected by, the act or omission causing such Default or Event
of Default;
(iii) a Fund Default or a Fund Event of Default (each as defined
below) with respect to a Fund acting on behalf of one or more
Borrowers that is an investment portfolio thereof shall
constitute a Default or Event of Default, as the case may be,
with respect to all such Borrowers to the extent that such
Fund Default or Event of Default is, in the reasonable
discretion of the Administrative Agent or the Required
Lenders, expected to have a Material Adverse Effect on each
such Borrower's ability to perform its obligations under this
Agreement and the other Loan Documents; and
39
(iv) an Event of Default of the type described in paragraph (h) of
this Section 7 shall constitute an Event of Default with
respect to all Borrowers for which Deutsche IMA no longer acts
as investment manager.
"Fund Event of Default" shall mean an Event of Default with respect to a Fund
(A) of any of the types described in paragraphs (e) or (i) of this Section 7, or
(B) arising from such Fund's failure to comply with the covenants set forth in
Sections 5.3, 5.4, 5.5 or 6.5. "Fund Default" shall mean any of the events
giving rise to Fund Events of Default, whether or not any requirement for the
giving of notice, the lapse of time, or both, or any other condition, has been
satisfied.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and appoints
the Administrative Agent as the agent of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on such ▇▇▇▇▇▇'s
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence, willful misfeasance, bad faith or misconduct of
any agents or attorneys in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (a) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Fund or any
Borrower or any officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of any Borrower or any
Fund to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Fund or any Borrower.
40
8.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to a Fund or a Borrowers),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders or all of the Lenders, as applicable, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or a
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders and each Borrower. The Administrative Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders or all of the Lenders, as
applicable; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
8.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of a Fund or
Borrower, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrowers and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis,
41
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrowers. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Fund or any Borrower which may
come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the Administrative
Agent in its capacity as such (to the extent not reimbursed by the Borrowers and
without limiting the obligation of the Borrowers to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with their Commitment Percentages immediately
prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's gross negligence or willful misconduct. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with any Fund or any Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 Business Days' notice to the Lenders and the
Borrowers. If the Administrative Agent shall resign as Administrative Agent
under this Agreement and the other Loan Documents, then the Required ▇▇▇▇▇▇▇
shall appoint from among the Lenders a successor agent for the Lenders whereupon
such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other
42
or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 8 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof, may be amended, supplemented or
modified except in accordance with the provisions of this Section. The Required
Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with each Fund, on
its own behalf or if applicable on behalf of the investment portfolios thereof
which are Borrowers, written amendments, supplements or modifications hereto and
to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of such Borrowers hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan or of any installment thereof, or reduce the stated
rate of any interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender affected
thereby, or (ii) amend, modify or waive any provision of this subsection (or any
other provision of this Agreement which expressly provides that the consent of
all the Lenders is required to take any action) or reduce the percentage
specified in the definition of Required Lenders, or consent to the assignment or
transfer by any Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents, in each case without the written consent
of all the Lenders, or (iii) amend, waive or modify the first two sentences of
Section 2.9(a), in each case without the written consent of all the Lenders, or
(iv) amend, waive or modify the requirement contained in the first sentence of
Section 2.16(a) that consent of all the Lenders is required to approve the
addition of Borrowers to this Agreement, in each case without the written
consent of all the Lenders, or (v) amend, waive or modify Section 2.6(b) without
the written consent of all the Lenders, or (vi) amend, waive or modify Section
6.1 without the written consent of all the Lenders, or (vii) amend, modify or
waive any provision of Section 8 without the written consent of the then
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall be effective (A) only for such Borrower(s) on whose behalf a
Fund executed such document(s) and (B) in the specific instance and for the
specific purpose for which given.
9.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (which writing may be in the
form of a facsimile transmission), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered, or five
days after being deposited in the mail, postage prepaid, or,
43
in the case of facsimile notice, when received, addressed as follows in the case
of any Fund, any Borrower and the Administrative Agent, and as set forth in
Schedule II in the case of the other parties hereto, or to such other address as
may be hereafter notified by the respective parties hereto:
The Funds and
the Borrowers:
With respect to each Fund that is a Massachusetts business trust (and each
Borrower which is an investment portfolio thereof):
Deutsche Investment Management Americas Inc.
Two International Place
Boston, Massachusetts 02110
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
With respect to each other Fund (and each Borrower which is an investment
portfolio thereof):
Deutsche Investment Management Americas Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative
Agent:
JPMORGAN CHASE BANK
Loan and Agency Services Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, New York 10081
Attention: Ms. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
JPMORGAN CHASE BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
44
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2.2, 2.4, 2.6, or 2.8 shall not be effective
until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of any party hereto, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
9.5 Payment of Expenses and Taxes; Indemnification. (a) Each Fund, on its
own behalf or if applicable on behalf of the investment portfolios thereof which
are Borrowers, agrees severally (subject to Section 9.5(b) below) (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 the
other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent, (ii) to reimburse
each Lender and the Administrative Agent for all its costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement with respect to such Borrower, the other Loan Documents and any such
other documents, including, without limitation, the reasonable fees and
disbursements of counsel to each Lender and of counsel to the Administrative
Agent, (iii) to indemnify and hold each Lender and the Administrative Agent
harmless from any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents with respect to such Borrower, and
(iv) to indemnify and hold each Lender and the Administrative Agent (and their
respective affiliates, directors, officers, agents and employees (collectively
with the Administrative Agent and the Lenders, the "Indemnified Parties"))
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, reasonable costs, reasonable
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, the actual or proposed use of proceeds, the
other Loan Documents and any such other documents, the failure of such Borrower
to comply with rules, regulations and laws regarding the business of mutual
funds, such Borrower's false or incorrect representations or warranties or other
information provided in connection with this Credit Agreement, or failure of
such Borrower to comply with covenants
45
contained herein or in any Note in a timely manner (all the foregoing in this
clause (iv), collectively, the "indemnified liabilities"), provided, that such
Fund, on its own behalf or if applicable on behalf of the investment portfolios
thereof which are Borrowers shall have no obligation hereunder to any
Indemnified Party with respect to indemnified liabilities to the extent arising
from (A) with respect to any Indemnified Party, the gross negligence or willful
misconduct of such Indemnified Party, or such Indemnified Party's failure to
comply with any material law or regulation governing the transactions
contemplated hereby, or (B) disputes arising between or among the Indemnitees
with respect to the Credit Agreement. The agreements in this Section shall
survive repayment of the Loans and all other amounts payable hereunder.
(b) Notwithstanding any other provision in this Agreement to the
contrary, to the extent any obligation to reimburse or indemnify any Indemnified
Party that arises pursuant to Section 9.5(a) is not attributable to any
particular Borrower, then such reimbursement or indemnification shall be made by
each Borrower (ratably, in accordance with its Pro Rata Allocation). To the
extent any such obligation to reimburse or indemnify any Indemnified Party is
attributable to one or more Borrowers, then such reimbursement or
indemnification shall be made by each such Borrower to the extent of its
liability therefor.
9.6 Successors and Assigns; Participations and Assignments. (a) This
Agreement shall be binding upon and inure to the benefit of the Funds, the
Borrowers, the Lenders, the Administrative Agent and their respective successors
and assigns, except that, except as may otherwise be provided herein, neither
any Fund nor any Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable laws, at any time sell to one or more
Eligible Lenders ("Participants") participating interests in any Loan owing to
such Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents. In the event of any such sale by a
Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Loan for all purposes
under this Agreement and the other Loan Documents, and the Borrowers and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such ▇▇▇▇▇▇'s rights and obligations under this Agreement and
the other Loan Documents. Any agreement pursuant to which any Lender may grant
such a participating interest shall provide that such Lender shall retain the
sole right and responsibility to enforce the obligations of the Borrowers
hereunder, including the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation agreement
may provide that (i) such Lender will not agree to any modification, amendment
or waiver of this Agreement described in clause (i) of the proviso in Section
9.1 without the consent of the Participant and (ii) the Participant may obtain
voting rights limited to changes in respect of the principal amount, interest
rates, fees and term of the Loans. Each Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall, to the maximum extent permitted by applicable laws, be
46
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 9.7(a) as fully as if it were a Lender
hereunder. Each Borrower also agrees that each Participant shall be entitled to
the benefits of Sections 2.10 and 2.11 with respect to its participation in the
Commitments and the Loans outstanding from time to time as if it was a Lender;
provided that, in the case of Section 2.11, such Participant shall have complied
with the requirements of said Section and provided, further, that no Participant
shall be entitled to receive any greater amount pursuant to any such Section
than the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) With the consent of the Borrowers (unless a Default or Event of
Default shall have occurred and be continuing or the Assignee (defined below) is
an Affiliate of the assigning Lender, in which case such consent shall not be
required) and the Administrative Agent (in each case, such consent not to be
unreasonably withheld or delayed), any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time
and from time to time assign to any Lender or any affiliate thereof that is an
Eligible Lender or to an additional Eligible Lender (an "Assignee") all or any
part of its rights and obligations under this Agreement and the other Loan
Documents pursuant to an Assignment and Acceptance, substantially in the form of
Exhibit 9.6(c), executed by such Assignee, such assigning Lender and the
Administrative Agent (and, provided (i) no Default or Event of Default shall
have occurred and be continuing and (ii) the Assignee is not an Affiliate of the
assigning Lender, Deutsche IMA or any of the Borrowers) and delivered to the
Administrative Agent for its acceptance and recording in the Register; provided,
however, that assignments to entities other than Lenders or Affiliates thereof
must be in amounts of at least $5,000,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto and the
Commitment of the Assignee shall be in an amount equal to that of such assigning
Lender prior to the execution of such Assignment and Acceptance).
(d) The Administrative Agent, on behalf of the Borrowers, shall
maintain at the address of the Administrative Agent referred to in Section 9.2 a
copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and each Fund, on its own behalf or if applicable on behalf of
the investment portfolios thereof which are Borrowers, the Administrative Agent
and the Lenders may (and, in the case of any Loan or other obligation hereunder
not evidenced by a Note, shall) treat each
47
Person whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement and
the other Loan Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being made
in the Register. The Register shall be available for inspection by the Borrowers
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and the Administrative Agent) together with
payment by the assigning Lender or Assignee to the Administrative Agent of a
registration and processing fee of $3,000 (for which no Borrower shall have an
obligation to reimburse), the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and to each Fund,
on its own behalf or if applicable on behalf of the investment portfolios
thereof which are Borrowers.
(f) Each Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, authorizes each Lender to
disclose to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information in such ▇▇▇▇▇▇'s
possession concerning such Fund or such Borrower and their Affiliates which has
been delivered to such Lender by or on behalf of such Fund or such Borrowers
pursuant to this Agreement or which has been delivered to such Lender by or on
behalf of such Fund or such Borrowers in connection with such ▇▇▇▇▇▇'s credit
evaluation of such Funds, Borrowers and their Affiliates prior to becoming a
party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without limitation,
any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve
Bank in accordance with applicable law.
9.7 Adjustments; Set-off. (a) If any Lender (a "Benefited Lender") shall
at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7(e), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans, or interest thereon, such Benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
48
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, with prompt notice subsequent to the
exercise of such rights but without prior notice to such Borrower, any such
notice being expressly waived by each Fund, on its own behalf or if applicable,
on behalf of the investment portfolios thereof which are Borrowers, to the
extent permitted by applicable law, upon any amount becoming due and payable by
a Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of such Borrower. Each Lender agrees
promptly to notify such Borrower and the Administrative Agent after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with Deutsche IMA and the
Administrative Agent.
9.9 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.10 Waiver of Conflicts; Confidentiality. (a) Each Fund, on its own
behalf or on behalf of the investment portfolios thereof which are Borrowers,
acknowledges that each of the Administrative Agent and each Lender and their
respective affiliates (collectively, the "Bank Parties") may be providing debt
financing, equity capital or other services (including financial advisory
services) to other companies in respect of which such Funds and Borrowers may
have conflicting interests regarding the transactions described herein and
otherwise. Except as may otherwise be permitted herein, the Bank Parties will
not disclose Confidential Information obtained from such Funds and/or Borrowers
by virtue of the transactions contemplated by this Agreement or their other
relationships with such Funds and/or Borrowers in connection with the
performance by each of the Bank Parties of services for other companies, and
each of the Bank Parties will not disclose any such Confidential Information to
other companies. Such Funds and Borrowers also acknowledge that no Bank Party
has any obligation to use in connection with the transactions contemplated by
this Agreement, or to furnish to any Fund or Borrower, confidential information
obtained from other companies.
(b)(i) For purposes of this Section, "Confidential Information" shall mean
all information received from any of the Funds, the Borrowers or Deutsche IMA
relating to any of them or their business, other than any such information that
is available to the Administrative Agent or any Lender on a nonconfidential
basis other than as a result of a breach of this
49
Agreement. Each of the Administrative Agent and each ▇▇▇▇▇▇ agrees to maintain
the confidentiality of, and not to use the Confidential Information, except that
Confidential Information may be disclosed (i) to its and its Affiliates'
directors, officers, employees and agents, including without limitation
accountants, legal counsel and other advisors for purposes relating to the
transactions contemplated by this Agreement or for conducting legitimate audits
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Confidential Information and will
have agreed to keep such Confidential Information confidential), (ii) to the
extent requested by any legal or regulatory authority having or claiming
jurisdiction over such Person, (iii) to the extent required by applicable laws
or regulations or by any subpoena or similar legal process, (iv) to any other
party to this Agreement for purposes relating to the transactions contemplated
hereby, (v) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (vi) subject to an agreement containing provisions
substantially the same as those of this subsection, to any Assignee or
Participant or any prospective Assignee or Participant which executes such
agreement, or (vii) with the consent of the Borrowers. Any Person required to
maintain the confidentiality of Confidential Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
(ii) Without limiting the foregoing provisions of this Section, in the
event that (I) any party to this Agreement (the "Providing Party") provides to
another party to this Agreement (the "Recipient Party") non-public personal
information concerning individual investors in any Fund or any Borrower that
such Providing Party is required to keep confidential under applicable
provisions of the Customer Confidentiality Laws and (II) such Providing Party
properly identifies such information as such to the Recipient Party at the time
such information is provided by, among other means of identification,
prominently marking such information with the words "NON-PUBLIC INFORMATION
SUBJECT TO CUSTOMER CONFIDENTIALITY LAWS AND SECTION 9.10(b)(ii) OF THE CREDIT
AGREEMENT", the Recipient Party shall treat such information as required by the
applicable provisions of the Customer Confidentiality Laws, it being understood
that this sentence does not, and is not intended to, create independent rights,
or rights of action or obligations for any Person not a party to this Agreement
and any such action shall constitute an "indemnified liability" under Section
9.5 hereof. "Customer Confidentiality Laws" means Title V of Public Law 106-102,
known as the "▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act", 15 USC 6801 to 6809, and the rules and
regulations adopted thereunder.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
FOR ITS CHOICE OF LAW RULES.
9.12 Submission To Jurisdiction; Waivers. Each Fund, on its own behalf or
if applicable on behalf of the investment portfolios thereof which are
Borrowers, the Administrative Agent and the Lenders hereby irrevocably and
unconditionally:
50
(a) submit for themselves and their respective property in any legal
action or proceeding relating to this Agreement and the other Loan
Documents to which they are a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such Fund
or such Borrower at its address set forth in Section 9.2 or at such other
address of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right of any party
hereto to effect service of process in any other manner permitted by law
or shall limit the right of any party hereto to sue in any other
jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, indirect, punitive or
consequential damages.
9.13 Acknowledgments. Each Fund, on its own behalf or if applicable on
behalf of the investment portfolios thereof which are Borrowers, hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to such Fund or any such Borrower
arising out of or in connection with this Agreement or any of the other
Loan Documents, and the relationship between the Administrative Agent and
the Lenders, on the one hand, and such Fund and each Borrower, on the
other hand, in connection herewith or therewith is solely that of creditor
and debtor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among such Fund, such Borrowers and the
Lenders.
9.14 WAIVERS OF JURY TRIAL. EACH FUND, ON ITS OWN BEHALF AND IF APPLICABLE
ON BEHALF OF THE INVESTMENT PORTFOLIOS THEREOF WHICH ARE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS
51
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
9.15 Non-Recourse. The Administrative Agent and the Lenders hereby agree
for the benefit of Deutsche IMA, and each and every shareholder, trustee,
director and officer of the Funds and the Borrowers and any successor, assignee,
heir, estate, executor, administrator or personal representative of any such
shareholder, trustee, director and officer (a "Non-Recourse Person") that: (a)
no Non-Recourse Person shall have any personal liability for any obligation of
any Fund or Borrower under this Agreement or any Loan Document or any other
instrument or document delivered pursuant hereto or thereto (except, in the case
of any shareholder, to the extent of his, her or its investment in a Borrower);
(b) no claim against any Non-Recourse Person may be made for any obligation of
any Fund or any Borrower under this Agreement or any Loan Document or other
instrument or document delivered pursuant hereto or thereto, whether for payment
of principal of, or interest on, the Loans or for any fees, expense, or other
amounts payable by any Fund or any Borrower hereunder or thereunder, or
otherwise; and (c) the obligations of each Borrower under this Agreement or any
Loan Document or other instrument or document delivered pursuant hereto or
thereto are enforceable solely against such Borrower and its properties and
assets.
9.16 Integration. This Agreement and the other Loan Documents represent
the agreement of each Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
9.17 Termination of Existing Credit Facilities; Consent and Waiver. (a)
Each of the Lenders hereto that is also a Lender under that certain Credit
Agreement dated as of April 28, 1999 (as amended, restated, supplemented or
otherwise modified from time to time, including without limitation as
terminated, replaced and restated by any Termination, Replacement and
Restatement Agreements, the "▇▇▇▇▇▇ Agreement") by and among several of the
Borrowers hereto and Chase as Administrative Agent (such Lenders constituting
the "Required Lenders" as defined in the ▇▇▇▇▇▇ Agreement), hereby (i)
acknowledges receipt of such Borrowers' written request to terminate the credit
facility that is the subject of the ▇▇▇▇▇▇ Agreement and all of the Commitments
(as defined in the ▇▇▇▇▇▇ Agreement) thereunder on and as of the date hereof,
(ii) waives the requirement contained in Section 2.4 of the ▇▇▇▇▇▇ Agreement
that such termination shall be effective as of the last day of a calendar
quarter, and waives any and all other provisions contained in the ▇▇▇▇▇▇
Agreement which would prohibit such termination from occurring on and as of the
date hereof, and (iii) consents (and each of such Borrowers hereby consents) to
the termination of such credit facility, such Commitments, and the Borrowers'
obligations thereunder (except those which by the express terms of the ▇▇▇▇▇▇
Agreement survive the termination of such credit facility) on and as of the date
hereof. On the date hereof such Borrowers shall pay to the Lenders party to the
▇▇▇▇▇▇ Agreement all amounts due and owing to them as required by the ▇▇▇▇▇▇
Agreement (including without limitation Section 2.4 thereof)
52
in respect of such termination, such payment to be a condition precedent to the
effectiveness of the foregoing termination.
(b) Each of the Lenders hereto that is also a Lender under that certain
Credit Agreement dated as of November 22, 1999 (as amended, restated,
supplemented or otherwise modified from time to time, including without
limitation as terminated, replaced and restated by any Termination, Replacement
and Restatement Agreements, the "▇▇▇▇▇▇▇ Agreement") by and among several of the
Borrowers hereto and Chase as Administrative Agent (such Lenders constituting
the "Required Lenders" as defined in the ▇▇▇▇▇▇▇ Agreement), hereby (i)
acknowledges receipt of such Borrowers' written request to terminate the credit
facility that is the subject of the ▇▇▇▇▇▇▇ Agreement and all of the Commitments
(as defined in the ▇▇▇▇▇▇▇ Agreement) thereunder on and as of the date hereof,
(ii) waives the requirement contained in Section 2.4 of the ▇▇▇▇▇▇▇ Agreement
that such termination shall be effective as of the last day of a calendar
quarter, and waives any and all other provisions contained in the ▇▇▇▇▇▇▇
Agreement which would prohibit such termination from occurring on and as of the
date hereof, and (iii) consents (and each of such Borrowers hereby consents) to
the termination of such credit facility, such Commitments, and the Borrowers'
obligations thereunder (except those which by the express terms of the ▇▇▇▇▇▇▇
Agreement survive the termination of such credit facility) on and as of the date
hereof. On the date hereof such Borrowers shall pay to the Lenders party to the
▇▇▇▇▇▇▇ Agreement all amounts due and owing to them as required by the ▇▇▇▇▇▇▇
Agreement (including without limitation Section 2.4 thereof) in respect of such
termination, such payment to be a condition precedent to the effectiveness of
the foregoing termination.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
53
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first written above.
JPMORGAN CHASE BANK,
as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
54
Accepted and agreed to by:
▇▇▇▇▇▇▇ CASH INVESTMENT TRUST
▇▇▇▇▇▇▇ FUNDS TRUST, on behalf of
▇▇▇▇▇▇▇ Short Term Bond Fund
▇▇▇▇▇▇▇ INCOME TRUST, on behalf of
▇▇▇▇▇▇▇ GNMA Fund
INVESTMENT TRUST, on behalf of
▇▇▇▇▇▇▇ Dividend and Growth Fund
▇▇▇▇▇▇▇ Growth and Income Fund
▇▇▇▇▇▇▇ Large Growth Fund
▇▇▇▇▇▇▇ S&P 500 Index Fund
▇▇▇▇▇▇▇ Small Company Stock Fund
▇▇▇▇▇▇▇ Capital Growth Fund
▇▇▇▇▇▇▇ PORTFOLIO TRUST, on behalf of
▇▇▇▇▇▇▇ Income Fund
▇▇▇▇▇▇▇ Balanced Fund
▇▇▇▇▇▇▇ MUTUAL FUNDS INC., on behalf of
itself and ▇▇▇▇▇▇▇ Gold and Precious
Metals Fund
▇▇▇▇▇▇▇ U.S. TREASURY MONEY FUND
55
▇▇▇▇▇▇▇ SECURITIES TRUST, on behalf of
▇▇▇▇▇▇▇ Development Fund
▇▇▇▇▇▇▇ Health Care Fund
▇▇▇▇▇▇▇ Technology Innovation Fund
▇▇▇▇▇▇▇ Small Company Value Fund
▇▇▇▇▇▇▇ 21st Century Growth Fund
▇▇▇▇▇▇▇ TAX FREE MONEY FUND
▇▇▇▇▇▇▇ MONEY MARKET TRUST, on behalf of
▇▇▇▇▇▇▇ Money Market Series
▇▇▇▇▇▇▇ PATHWAY SERIES, on behalf of
Pathway Moderate Portfolio
Pathway Conservative Portfolio
Pathway Growth Portfolio
56
▇▇▇▇▇▇▇ VARIABLE SERIES I, on behalf of
Balanced Portfolio
Bond Portfolio
Capital Growth Portfolio
Global Discovery Portfolio
Growth and Income Portfolio
International Portfolio
Money Market Portfolio
21st Century Growth Portfolio
Health Sciences Portfolio
▇▇▇▇▇▇▇ MUNICIPAL TRUST, on behalf of
▇▇▇▇▇▇▇ Managed Municipal Bonds
▇▇▇▇▇▇▇ High Yield Tax Free Fund
57
GLOBAL/INTERNATIONAL FUND, INC., on
behalf of
▇▇▇▇▇▇▇ Emerging Markets Income Fund
▇▇▇▇▇▇▇ Global Fund
▇▇▇▇▇▇▇ Global Bond Fund
▇▇▇▇▇▇▇ Global Discovery Fund
THE JAPAN FUND, INC.
▇▇▇▇▇▇▇ STATE TAX FREE TRUST, on behalf
of ▇▇▇▇▇▇▇ Massachusetts Tax Free Fund
58
▇▇▇▇▇▇▇ TAX FREE TRUST, on behalf of
▇▇▇▇▇▇▇ Medium Term Tax Free Fund
VALUE EQUITY TRUST, on behalf of
▇▇▇▇▇▇▇ Large Company Value Fund
▇▇▇▇▇▇▇ Select 1000 Growth Fund
▇▇▇▇▇▇▇ Select 500 Fund
▇▇▇▇▇▇▇ INTERNATIONAL FUND, INC.,
on behalf of
▇▇▇▇▇▇▇ Emerging Markets Growth Fund
▇▇▇▇▇▇▇ Greater Europe Growth Fund
▇▇▇▇▇▇▇ International Fund
▇▇▇▇▇▇▇ Latin America Fund
▇▇▇▇▇▇▇ Pacific Opportunities Fund
59
THE BRAZIL FUND, INC.
THE KOREA FUND, INC.
▇▇▇▇▇▇▇ NEW ASIA FUND, INC.
CASH ACCOUNT TRUST, on behalf of
Money Market Portfolio
Government Securities Portfolio
Tax-Exempt Portfolio
CASH EQUIVALENT FUND, on behalf of
Money Market Portfolio
Government Securities Portfolio
Tax-Exempt Portfolio
INVESTORS CASH TRUST, on behalf of
Government Securities Portfolio
Treasury Portfolio
INVESTORS MUNICIPAL CASH FUND, on
behalf of
Investors Florida Municipal Cash Fund
Investors New Jersey Municipal Cash Fund
Investors Michigan Municipal Cash Fund
Investors Pennsylvania Municipal Cash
Tax-Exempt New York Money Market Portfolio
▇▇▇▇▇▇▇ AGGRESSIVE GROWTH FUND
▇▇▇▇▇▇▇ BLUE CHIP FUND
60
▇▇▇▇▇▇▇ GROWTH FUND
▇▇▇▇▇▇▇ HIGH YIELD SERIES, on behalf of
▇▇▇▇▇▇▇ High Yield Fund
▇▇▇▇▇▇▇ PORTFOLIOS, on behalf of
▇▇▇▇▇▇▇ Cash Reserves Fund
▇▇▇▇▇▇▇ DYNAMIC GROWTH FUND
▇▇▇▇▇▇▇ STATE TAX-FREE INCOME SERIES, on
behalf of
▇▇▇▇▇▇▇ CA Tax-Free Income Fund
▇▇▇▇▇▇▇ FL Tax-Free Income Fund
▇▇▇▇▇▇▇ NY Tax-Free Income Fund
▇▇▇▇▇▇▇ STRATEGIC INCOME FUND
▇▇▇▇▇▇▇ TECHNOLOGY FUND
▇▇▇▇▇▇▇ TOTAL RETURN FUND
▇▇▇▇▇▇▇ U.S. GOVERNMENT SECURITIES FUND
▇▇▇▇▇▇▇ FOCUS VALUE PLUS GROWTH FUND
61
TAX-EXEMPT CA MONEY MARKET FUND
▇▇▇▇▇▇▇ MONEY FUNDS, on behalf of
▇▇▇▇▇▇▇ Money Market Fund
▇▇▇▇▇▇▇ Government Money Fund
▇▇▇▇▇▇▇ Tax-Exempt Money Fund
▇▇▇▇▇▇▇ YIELDWISE FUNDS, on behalf of
▇▇▇▇▇▇▇ YieldWise Money Fund
▇▇▇▇▇▇▇ YieldWise Government Money Fund
▇▇▇▇▇▇▇ YieldWise Municipal Money Fund
▇▇▇▇▇▇▇ EQUITY TRUST, on behalf of
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Financial Services Fund
62
▇▇▇▇▇▇▇ INVESTORS TRUST, on behalf of
▇▇▇▇▇▇▇ Focus Growth Fund
▇▇▇▇▇▇▇ Research Fund
▇▇▇▇▇▇▇ S&P 500 Stock Fund
▇▇▇▇▇▇▇ INTERNATIONAL RESEARCH FUND, INC.,
on behalf of
▇▇▇▇▇▇▇ International Research Fund
▇▇▇▇▇▇▇ NEW EUROPE FUND, INC.
63
▇▇▇▇▇▇▇ TARGET FUND (formerly
▇▇▇▇▇▇▇ Target Equity Fund), on behalf of
▇▇▇▇▇▇▇ Target 2010 Fund
▇▇▇▇▇▇▇ Target 2011 Fund
▇▇▇▇▇▇▇ Target 2012 Fund (formerly ▇▇▇▇▇▇▇
Retirement Fund - Series III)
▇▇▇▇▇▇▇ Retirement Fund - Series IV
▇▇▇▇▇▇▇ Retirement Fund - Series V
▇▇▇▇▇▇▇ Retirement Fund - Series VI
▇▇▇▇▇▇▇ Retirement Fund - Series VII
▇▇▇▇▇▇▇ Worldwide 2004 Fund
▇▇▇▇▇▇▇ VALUE SERIES, INC., on behalf of
▇▇▇▇▇▇▇ Contrarian Fund
▇▇▇▇▇▇▇-▇▇▇▇▇▇ High Return Equity Fund
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Small Cap Value Fund
(formerly ▇▇▇▇▇▇▇ Small Cap Value Fund)
64
▇▇▇▇▇▇▇ VARIABLE SERIES II, on behalf of
▇▇▇▇▇▇▇ Aggressive Growth Portfolio
▇▇▇▇▇▇▇ Blue Chip Portfolio
▇▇▇▇▇▇▇ Contrarian Value Portfolio
▇▇▇▇▇▇▇ Global Blue Chip Portfolio
▇▇▇▇▇▇▇ Government Securities Portfolio
▇▇▇▇▇▇▇ Growth Portfolio
▇▇▇▇▇▇▇ High Yield Portfolio
▇▇▇▇▇▇▇ International Research Portfolio
▇▇▇▇▇▇▇ Investment Grade Bond Portfolio
▇▇▇▇▇▇▇ New Europe Portfolio
▇▇▇▇▇▇▇ Money Market Portfolio
▇▇▇▇▇▇▇ Small Cap Growth Portfolio
▇▇▇▇▇▇▇ Strategic Income Portfolio
▇▇▇▇▇▇▇ Technology Growth Portfolio
▇▇▇▇▇▇▇ Total Return Portfolio
▇▇▇▇▇▇▇ Focus Value+Growth Portfolio
SVS Dreman Financial Services Portfolio
SVS Dreman High Return Equity Portfolio
SVS Dreman Small Cap Value Portfolio
(formerly ▇▇▇▇▇▇▇ Small Cap Value
Portfolio)
SVS Focused Large Cap Growth Portfolio
SVS Growth and Income Portfolio
SVS Growth Opportunities Portfolio
SVS Index 500 Portfolio
SVS Dynamic Growth Portfolio
SVS Mid Cap Growth Portfolio
SVS Strategic Equity Portfolio
SVS Venture Value Portfolio
65
▇▇▇▇▇▇▇ INTERMEDIATE GOVERNMENT TRUST
▇▇▇▇▇▇▇ MUNICIPAL INCOME TRUST
▇▇▇▇▇▇▇ STRATEGIC INCOME TRUST
▇▇▇▇▇▇▇ STRATEGIC MUNICIPAL INCOME TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
66
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
ABN AMRO BANK N.V., CHICAGO BRANCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
67
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
68
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
BANK OF MONTREAL
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
69
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
BNP PARIBAS
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice Presicent
70
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
BROWN BROTHERS ▇▇▇▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Partner
71
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
CITIBANK N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
72
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
73
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
74
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
DANSKE BANK
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
75
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Associate
76
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
LLOYDS TSB BANK PLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
Financial Institutions, USA
G311
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇
Title: Vice President
Financial Institutions, USA
T020
77
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
MELLON BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Lending Officer
78
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
NORDDEUTSCHE LANDESBANK
GIROZENTRALE NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Manager
79
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
80
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
81
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
STATE STREET BANK AND TRUST CO.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
82
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
UBS AG, STAMFORD BRANCH
By: /s/ ▇▇▇▇▇▇▇ Saint
------------------------------
Name: ▇▇▇▇▇▇▇ Saint
Title: Associate Director
Banking Products Services, US
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
Banking Products Services, US
83
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
(Formerly known as Zurich ▇▇▇▇▇▇▇ Investments, Inc.),
2002 CREDIT AGREEMENT
SIGNATURE PAGE
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
84
SCHEDULE I
BORROWERS & PRO RATA ALLOCATIONS
DESIGNATED
BORROWERS(1)
& BORROWER
ASSET
COVERAGE
BORROWER NAME RATIO ALLOCATION
------------- ------------ ----------
▇▇▇▇▇▇▇ Cash Investment Trust 300% 1.13%
▇▇▇▇▇▇▇ Funds Trust on behalf of
▇▇▇▇▇▇▇ Short Term Bond Fund 300% 1.11%
▇▇▇▇▇▇▇ Income Trust on behalf of
▇▇▇▇▇▇▇ GNMA Fund 300% 4.16%
Investment Trust on behalf of
▇▇▇▇▇▇▇ Dividend and Growth Fund 300% 0.03%
▇▇▇▇▇▇▇ Growth and Income Fund 300% 6.63%
▇▇▇▇▇▇▇ Large Company Growth Fund 300% 0.78%
▇▇▇▇▇▇▇ S&P 500 Index Fund 300% 0.84%
▇▇▇▇▇▇▇ Small Company Stock Fund 300% 0.09%
▇▇▇▇▇▇▇ Capital Growth Fund 300% 1.73%
▇▇▇▇▇▇▇ Portfolio Trust on behalf of
▇▇▇▇▇▇▇ Income Fund 300% 1.19%
▇▇▇▇▇▇▇ Balanced Fund 300% 0.87%
▇▇▇▇▇▇▇ Mutual Funds Inc. on behalf of
▇▇▇▇▇▇▇ Gold and Precious Metals Fund D 400% 0.11%
▇▇▇▇▇▇▇ U.S. Treasury Money Fund 300% 0.34%
▇▇▇▇▇▇▇ Securities Trust on behalf of
▇▇▇▇▇▇▇ Development Fund 300% 0.32%
▇▇▇▇▇▇▇ Health Care Fund 300% 0.22%
▇▇▇▇▇▇▇ Technology Innovation Fund 300% 0.26%
▇▇▇▇▇▇▇ Small Company Value Fund 300% 0.24%
▇▇▇▇▇▇▇ 21st Century Growth Fund 300% 0.26%
▇▇▇▇▇▇▇ Tax Free Money Fund 300% 0.32%
----------
(1) Each Designated Borrower is indicated by the letter "D". The Asset Coverage
Ratio for any Designated Borrower is such Borrower's Designated Borrower Asset
Coverage Ratio.
85
▇▇▇▇▇▇▇ Money Market Trust on behalf of
▇▇▇▇▇▇▇ Money Market Series 300% 7.57%
▇▇▇▇▇▇▇ Pathway Series on behalf of
Pathway Moderate Portfolio 300% 0.24%
Pathway Conservative Portfolio 300% 0.11%
Pathway Growth Portfolio 300% 0.21%
▇▇▇▇▇▇▇ Variable Series I on behalf of
Balanced Portfolio 300% 0.16%
Bond Portfolio 300% 0.18%
Capital Growth Portfolio 300% 0.81%
Global Discovery Portfolio 300% 0.15%
Growth and Income Portfolio 300% 0.18%
International Portfolio 300% 0.47%
Money Market Portfolio 300% 0.14%
21st Century Growth Portfolio 300% 0.04%
Health Sciences Portfolio 300% 0.06%
▇▇▇▇▇▇▇ Municipal Trust on behalf of
▇▇▇▇▇▇▇ Managed Municipal Bonds 300% 4.73%
▇▇▇▇▇▇▇ High Yield Tax Free Fund 300% 0.63%
Global/International Fund, Inc. on behalf of
▇▇▇▇▇▇▇ Emerging Markets Income Fund D 400% 0.13%
▇▇▇▇▇▇▇ Global Fund 300% 1.04%
▇▇▇▇▇▇▇ Global Bond Fund 300% 0.17%
▇▇▇▇▇▇▇ Global Discovery Fund 300% 0.49%
The Japan Fund, Inc. 300% 0.31%
▇▇▇▇▇▇▇ State Tax Free Trust. on behalf of
▇▇▇▇▇▇▇ Massachusetts Tax Free Fund 300% 0.49%
▇▇▇▇▇▇▇ Tax Free Trust on behalf of
▇▇▇▇▇▇▇ Medium Term Tax Free Fund 300% 0.60%
Value Equity Trust on behalf of
▇▇▇▇▇▇▇ Large Company Value Fund 300% 2.00%
▇▇▇▇▇▇▇ Select 1000 Growth Fund 300% 0.02%
▇▇▇▇▇▇▇ Select 500 Fund 300% 0.05%
86
▇▇▇▇▇▇▇ International Fund, Inc. on behalf of D 400% 0.05%
▇▇▇▇▇▇▇ Emerging Markets Growth Fund
▇▇▇▇▇▇▇ Greater Europe Growth Fund 300% 0.63%
▇▇▇▇▇▇▇ International Fund 300% 2.63%
▇▇▇▇▇▇▇ Latin America Fund D 400% 0.33%
▇▇▇▇▇▇▇ Pacific Opportunities Fund D 400% 0.09%
The Brazil Fund, Inc. D 2000% 0.27%
The Korea Fund, Inc. D 2000% 0.82%
▇▇▇▇▇▇▇ New Asia Fund, Inc. D 2000% 0.09%
CASH ACCOUNT TRUST
Money Market Portfolio 300%
Government Securities Portfolio 300% 1.75%
Tax-Exempt Portfolio 300% 1.04%
CASH EQUIVALENT FUND
Money Market Portfolio 300% 0.88%
Government Securities Portfolio 300% 0.47%
Tax-Exempt Portfolio 300% 0.30%
INVESTORS CASH TRUST
Government Securities Portfolio 300% 0.49%
Treasury Portfolio 300% 0.06%
INVESTORS MUNICIPAL CASH FUND
Investors Florida Municipal Cash Fund 300% 0.06%
Investors New Jersey Municipal Cash Fund 300% 0.07%
Investors Michigan Municipal Cash Fund 300% 0.03%
Investors Pennsylvania Municipal Cash Fund 300% 0.03%
Tax-Exempt New York Money Market Portfolio 300% 0.17%
▇▇▇▇▇▇▇ AGGRESSIVE GROWTH FUND 300% 0.18%
▇▇▇▇▇▇▇ BLUE CHIP FUND 300% 0.76%
▇▇▇▇▇▇▇ GROWTH FUND 300% 1.45%
▇▇▇▇▇▇▇ HIGH YIELD SERIES
▇▇▇▇▇▇▇ High Yield Fund 300% 2.76%
87
▇▇▇▇▇▇▇ PORTFOLIOS
▇▇▇▇▇▇▇ Cash Reserves Fund 300% 0.47%
▇▇▇▇▇▇▇ DYNAMIC GROWTH FUND 300% 0.40%
▇▇▇▇▇▇▇ STATE TAX-FREE INCOME SERIES
▇▇▇▇▇▇▇ CA Tax-Free Income Fund 300% 1.04%
▇▇▇▇▇▇▇ FL Tax-Free Income Fund 300% 0.07%
▇▇▇▇▇▇▇ NY Tax-Free Income Fund 300% 0.37%
▇▇▇▇▇▇▇ STRATEGIC INCOME FUND 300% 0.42%
▇▇▇▇▇▇▇ TECHNOLOGY FUND D 1000% 2.13%
▇▇▇▇▇▇▇ TOTAL RETURN FUND 300% 2.74%
▇▇▇▇▇▇▇ U.S. GOVERNMENT SECURITIES FUND 300% 3.95%
▇▇▇▇▇▇▇ FOCUS VALUE PLUS GROWTH FUND 300% 0.11%
TAX-EXEMPT CA MONEY MARKET FUND 300% 0.52%
▇▇▇▇▇▇▇ MONEY FUNDS
▇▇▇▇▇▇▇ Money Market Fund 300% 5.25%
▇▇▇▇▇▇▇ Government Money Fund 300% 0.67%
▇▇▇▇▇▇▇ Tax-Exempt Money Fund 300% 0.69%
▇▇▇▇▇▇▇ YIELDWISE FUNDS
▇▇▇▇▇▇▇ YieldWise Money Fund 300% 0.83%
▇▇▇▇▇▇▇ YieldWise Government Money Fund 300% 0.29%
▇▇▇▇▇▇▇ YieldWise Municipal Money Fund 300% 0.46%
▇▇▇▇▇▇▇ EQUITY TRUST
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Financial Services Fund 300% 0.16%
▇▇▇▇▇▇▇ INVESTORS TRUST
▇▇▇▇▇▇▇ Focus Growth Fund 300% 0.01%
▇▇▇▇▇▇▇ Research Fund 300% 0.01%
▇▇▇▇▇▇▇ S&P 500 Stock Fund 300% 0.08%
88
▇▇▇▇▇▇▇ INTERNATIONAL RESEARCH FUND, INC.
▇▇▇▇▇▇▇ International Research Fund
300% 0.01%
▇▇▇▇▇▇▇ NEW EUROPE FUND, INC. 300% 0.16%
▇▇▇▇▇▇▇ TARGET FUND (formerly ▇▇▇▇▇▇▇
Target Equity Fund)
▇▇▇▇▇▇▇ Target 2010 Fund 300% 0.07%
▇▇▇▇▇▇▇ Target 2011 Fund 300% 0.12%
▇▇▇▇▇▇▇ Target 2012 Fund
(formerly ▇▇▇▇▇▇▇ Retirement Fund - Series III) 300% 0.08%
▇▇▇▇▇▇▇ Retirement Fund - Series IV 300% 0.08%
▇▇▇▇▇▇▇ Retirement Fund - Series V 300% 0.09%
▇▇▇▇▇▇▇ Retirement Fund - Series VI 300% 0.05%
▇▇▇▇▇▇▇ Retirement Fund - Series VII 300% 0.04%
▇▇▇▇▇▇▇ Worldwide 2004 Fund 300% 0.02%
▇▇▇▇▇▇▇ VALUE SERIES, INC.
▇▇▇▇▇▇▇ Contrarian Fund 300% 0.21%
▇▇▇▇▇▇▇-▇▇▇▇▇▇ High Return Equity Fund 300% 4.13%
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Small Cap Value Fund
(formerly ▇▇▇▇▇▇▇ Small Cap Value Fund) 300% 0.39%
▇▇▇▇▇▇▇ VARIABLE SERIES II
▇▇▇▇▇▇▇ Aggressive Growth Portfolio 300% 0.07%
▇▇▇▇▇▇▇ Blue Chip Portfolio 300% 0.23%
▇▇▇▇▇▇▇ Contrarian Value Portfolio 300% 0.25%
▇▇▇▇▇▇▇ Global Blue Chip Portfolio 300% 0.04%
▇▇▇▇▇▇▇ Government Securities Portfolio 300% 0.31%
▇▇▇▇▇▇▇ Growth Portfolio 300% 0.38%
▇▇▇▇▇▇▇ High Yield Portfolio 300% 0.32%
▇▇▇▇▇▇▇ International Research Portfolio 300% 0.11%
▇▇▇▇▇▇▇ Investment Grade Bond Portfolio 300% 0.14%
▇▇▇▇▇▇▇ New Europe Portfolio 300% 0.02%
▇▇▇▇▇▇▇ Money Market Portfolio 300% 0.66%
▇▇▇▇▇▇▇ Small Cap Growth Portfolio 300% 0.21%
▇▇▇▇▇▇▇ Strategic Income Portfolio 300% 0.02%
▇▇▇▇▇▇▇ Technology Growth Portfolio D 2000% 0.33%
▇▇▇▇▇▇▇ Total Return Portfolio 300% 0.82%
▇▇▇▇▇▇▇ Focus Value+Growth Portfolio 300% 0.13%
SVS Dreman Financial Services Portfolio 300% 0.12%
SVS Dreman High Return Equity Portfolio 300% 0.47%
89
SVS Dreman Small Cap Value Portfolio
(formerly ▇▇▇▇▇▇▇ Small Cap Value Portfolio) 300% 0.20%
SVS Growth Opportunities Portfolio 300% 0.16%
SVS Index 500 Portfolio 300% 0.23%
SVS Dynamic Growth Portfolio 300% 0.02%
SVS Mid Cap Growth Portfolio 300% 0.05%
SVS Strategic Equity Portfolio 300% 0.05%
SVS Venture Value Portfolio 300% 0.12%
SVS Focused Large Cap Growth Portfolio 300% 0.06%
SVS Growth and Income Portfolio 300% 0.18%
▇▇▇▇▇▇▇ INTERMEDIATE GOVERNMENT TRUST
300% 0.24%
▇▇▇▇▇▇▇ MUNICIPAL INCOME TRUST 300% 0.71%
▇▇▇▇▇▇▇ STRATEGIC INCOME TRUST 300% 0.14%
▇▇▇▇▇▇▇ STRATEGIC MUNICIPAL INCOME TRUST
300% 0.19%
90
SCHEDULE II
COMMITMENTS, ADDRESSES, ETC.
AMOUNT OF
AMOUNT OF SWING LINE
NAME AND ADDRESS OF LENDER COMMITMENT ($) COMMITMENT
-------------------------- -------------- ----------
JPMORGAN CHASE BANK $100,000,000 $0
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
STATE STREET BANK AND TRUST CO. $125,000,000 $125,000,000
Lafayette Corp. Center
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
CREDIT LYONNAIS NEW YORK BRANCH $100,000,000 $0
Credit Lyonnais Building
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
DANSKE BANK $100,000,000 $0
NEW YORK BRANCH
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇@▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
91
FLEET NATIONAL BANK $100,000,000 $0
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇_▇_▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
ABN AMRO BANK N.V.,
CHICAGO BRANCH $70,000,000 $0
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
BNP PARIBAS $70,000,000 $0
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
CITIBANK N.A. $70,000,000 $0
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇\
E-mail: ▇▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇
LLOYDS TSB BANK PLC $70,000,000 $0
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇-▇▇▇.▇▇▇
92
THE ROYAL BANK OF SCOTLAND PLC $70,000,000 $0
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇
THE BANK OF NOVA SCOTIA $50,000,000 $0
New York Agency
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
BANK OF MONTREAL $50,000,000 $0
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
CREDIT SUISSE FIRST BOSTON $50,000,000 $0
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-3629
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇
MELLON BANK, N.A. $50,000,000 $0
One Mellon Bank Center
Pittsburgh, PA 15258-0001
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇▇@▇▇▇▇▇▇.▇▇▇
93
NORDDEUTSCHE LANDESBANK $50,000,000 $0
GIROZENTRALE NEW YORK BRANCH
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
SOCIETE GENERALE $50,000,000 $0
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇.▇▇▇▇▇▇.▇▇▇
UBS AG, STAMFORD BRANCH $50,000,000 $0
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇.▇▇▇
WESTDEUTSCHE LANDESBANK $50,000,000 $0
GIROZENTRALE, NEW YORK BRANCH
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇_▇▇▇@▇▇▇▇▇▇.▇▇▇
BROWN BROTHERS ▇▇▇▇▇▇▇▇ & CO. $25,000,000 $0
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇
94
SCHEDULE III
INVESTMENT MANAGEMENT AGREEMENTS
For each Fund, an Investment Management Agreement dated April 5, 2002
between Deutsche IMA and such Fund.
95
SCHEDULE IV
CUSTODY AGREEMENTS
1. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Cash Investment Trust dated March 19, 1980, as amended.
2. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Funds Trust dated December 17, 1982, as amended.
3. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Income Trust dated November 30, 1984, as amended.
4. Custodian Agreement between State Street Bank and Trust Company and
Investment Trust dated December 31, 1984, as amended.
5. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Portfolio Trust dated December 31, 1984, as amended.
6. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Mutual Funds, Inc. dated August 23, 1991, as amended.
7. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
U.S. Treasury Money Fund dated May 21, 1980, as amended.
8. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Securities Trust dated September 6, 1995, as amended.
9. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Tax Free Money Fund dated December 31, 1979, as amended.
10. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Money Market Trust dated August 7, 2000, as amended.
11. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Pathway Series dated November 15, 1996, as amended.
12. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Variable Series I dated August 22, 1985, as amended.
13. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Municipal Trust dated February 7, 2000, as amended.
14. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
State Tax Free Trust dated June 14, 1983, as amended.
96
15. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Tax Free Trust dated April 12, 1983, as amended.
16. Custodian Agreement between State Street Bank and Trust Company and Value
Equity Trust dated October 1, 1982, as amended.
17. Custodian Agreement between State Street Bank and Trust Company and Cash
Account Trust dated April 19, 1999, as amended.
18. Custodian Agreement between State Street Bank and Trust Company and Cash
Equivalent Fund dated April 19, 1999, as amended.
19. Custodian Agreement between State Street Bank and Trust Company and
Investors Cash Trust dated April 19, 1999, as amended.
20. Custodian Agreement between State Street Bank and Trust Company and
Investors Municipal Cash Fund dated May 3, 1999, as amended.
21. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Aggressive Growth Fund dated February 22, 1999, as amended.
22. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Blue Chip Fund dated March 3, 1999, as amended.
23. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Growth Fund dated March 3, 1999, as amended.
24. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
High Yield Series dated April 5, 1999, as amended.
25. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Portfolios dated April 5, 1999, as amended.
26. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Dynamic Growth Fund dated April 5, 1999, as amended.
27. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
State Tax-Free Income Series dated March 15, 1999, as amended.
28. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Strategic Income Fund dated March 22, 1999, as amended.
29. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Technology Fund dated March 3, 1999, as amended.
97
30. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Total Return Fund dated February 22, 1999, as amended.
31. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
U.S. Government Securities Fund dated April 5, 1999, as amended.
32. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Focus Value Plus Growth Fund dated April 19, 1999, as amended.
33. Custodian Agreement between State Street Bank and Trust Company and
Tax-Exempt CA Money Market Fund dated May 3, 1999, as amended.
34. Custodian Agreement between State Street Bank and Trust Company and Zurich
Money Funds dated April 19, 1999, as amended.
35. Custodian Agreement between State Street Bank and Trust Company and Zurich
Yieldwise Funds dated November 30, 1998, as amended.
36. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Equity Trust dated March 9, 1998, as amended.
37. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Investors Trust dated December 30, 1998, as amended.
38. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Target Fund dated February 22, 1999, as amended.
39. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Value Series, Inc. dated February 22, 1999, as amended.
40. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Variable Series II dated February 22, 1999, as amended.
41. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Intermediate Government Trust dated April 5, 1999, as amended.
42. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Municipal Income Trust dated March 15, 1999, as amended.
43. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Strategic Income Trust dated March 22, 1999, as amended.
44. Custodian Agreement between State Street Bank and Trust Company and ▇▇▇▇▇▇▇
Strategic Municipal Income Trust dated March 15, 1999, as amended.
98
45. Custodian Agreement between Brown Brothers ▇▇▇▇▇▇▇▇ and Global/International
Fund, Inc. dated [DATE], as amended.
46. Custodian Agreement between Brown Brothers ▇▇▇▇▇▇▇▇ and The Japan Fund, Inc.
dated [DATE], as amended.
47. Custodian Agreement between Brown Brothers ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
International Fund, Inc. dated [DATE], as amended.
48. Custodian Agreement between Brown Brothers ▇▇▇▇▇▇▇▇ and The Brazil Fund,
Inc. dated [DATE], as amended.
49. Custodian Agreement between Brown Brothers ▇▇▇▇▇▇▇▇ and The Korea Fund, Inc.
dated [DATE], as amended.
50. Custodian Agreement between Brown Brothers ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ New Asia
Fund, Inc. dated [DATE], as amended.
51. Custodian Agreement between Brown Brothers ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
International Research Fund, Inc. dated [DATE], as amended.
52. Custodian Agreement between Brown Brothers ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ New Europe
Fund, Inc. dated [DATE], as amended.
99
EXHIBIT 2.5(E)
FORM OF NOTE
$__________________ New York, New York
, 200__
FOR VALUE RECEIVED, [the Borrower] (the "Borrower"), hereby
unconditionally promises to pay to the order of __________________________, at
the office of JPMORGAN CHASE BANK, as administrative agent for the Lenders (the
"Lenders") under the Credit Agreement, as hereinafter defined (in such capacity,
the "Administrative Agent"), located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, in lawful money of the United States of America and in immediately
available funds, on the Maturity Date the principal amount of (a)__________
DOLLARS ($ ), or, if less (b) the aggregate unpaid principal amount of all Loans
made by the Lenders to the Borrower pursuant to subsection 2.1 of the Credit
Agreement, as hereinafter defined.
The undersigned further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time from the Closing
Date at the applicable rates per annum set forth in subsection 2.7 of the Credit
Agreement referred to below until any such amount shall become due and payable
(whether at the stated maturity, by acceleration or otherwise), and thereafter
on such overdue amount at the rate per annum set forth in subsection 2.7(b) of
the Credit Agreement until paid in full (both before and after judgment).
Interest shall be payable in arrears on each applicable Interest Payment Date,
commencing on the first such date to occur after the date hereof and terminating
upon payment (including prepayment) in full of the unpaid principal amount
hereof; provided that interest accruing on any overdue amount shall be payable
on demand.
The holder of this Note is authorized to endorse on the schedule
annexed hereto and made a part hereof the date and amount of each Loan made to
the Borrower pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof. Each such endorsement shall
constitute prima facie evidence of the accuracy of the information endorsed. The
failure to make any such endorsement shall not affect the obligations of the
Borrower in respect of such Loan.
This Note (a) is one of the Notes referred to in the Credit
Agreement, dated as of April 11, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lenders and the Administrative Agent, (b) is subject to the provisions of the
Credit Agreement and (c) is subject to optional and mandatory prepayment in
whole or in part as provided in the Credit Agreement.
100
Upon the occurrence of one or more Events of Default, all amounts
then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK.
[NAME OF FUND] on behalf
of [NAME OF ▇▇▇▇▇▇▇▇]
By:
-----------------------
Name:
Title:
101
Schedule A to Note
LOANS AND REPAYMENTS OF LOANS
AMOUNT OF UNPAID
PRINCIPAL PRINCIPAL
AMOUNT OF OF LOANS BALANCE OF NOTATION
DATE LOANS REPAID LOANS MADE BY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
102
EXHIBIT 2.16(A)
FORM OF DESIGNATION OF NEW BORROWERS
--------- --, [ ]
JPMORGAN CHASE BANK, as Administrative Agent
Each of the Lenders under the
Credit Agreement identified below
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of April
11, 2002 among certain mutual funds managed by Deutsche Investment Management
Americas Inc. (each, a "Fund", and collectively, the "Funds"), each on behalf of
itself, and certain of its respective investment portfolios set forth beneath
such Fund's name on the signature pages thereto (each of which investment
portfolios is, individually, a "Borrower" and, collectively, the "Borrowers"),
the several banks (the "Lenders") from time to time parties thereto and JPMorgan
Chase Bank as administrative agent for the Lenders (the "Agreement").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to them in the Agreement.
The undersigned open-end registered investment Company (the "New
Fund"), on behalf of the investment portfolios set forth beneath its name (each
such investment portfolio a "New Borrower") hereby requests that each New
Borrower be admitted as an additional Borrower under the Agreement.
The New Fund and each New Borrower hereby represent and warrant to the
Administrative Agent and each Lender that as of [ ] and after giving effect to
the admission of each New Borrower as an additional Borrower under the
Agreement: (i) the representations and warranties set forth in Section 3 of the
Agreement are true and correct with respect to it; (ii) it is in compliance in
all material respects with all the terms and provisions set forth in the
Agreement; (iii) no Default or Event of Default with respect to it has occurred
and is continuing.
Each New Borrower agrees to be bound by the terms and conditions of the
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 New Borrower as an
additional Borrower under the Agreement by executing the [ ] Amendment Agreement
dated as of the date hereof.
[SIGNATORIES]
103
EXHIBIT 9.6 (C)
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the CREDIT AGREEMENT, dated as of April 11,
2002 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among (i) certain mutual funds managed by Deutsche
Investment Management Americas Inc., on behalf of themselves and each series or
portfolio of the fund named therein (each a "Borrower", and collectively, the
"Borrowers"); (ii) JPMorgan Chase Bank, a New York banking corporation, as a
Lender and as administrative agent for the Lenders hereunder (in such capacity,
the "Administrative Agent") and (iii) the several banks from time to time
parties to this Agreement (the "Lenders"). Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
(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 defined below) the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement.
2. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to or in any connection with the Credit Agreement
or with respect to the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any other Loan
Document or any other instrument or document furnished pursuant thereto, other
than that the Assignor has not created any adverse claim upon the interest being
assigned by it hereunder and that such interest is free and clear of any such
adverse claim; (b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower, or any
other obligor or the performance or observance by any Borrower, or any other
obligor of any of their respective obligations under the Credit Agreement or any
other Loan Document or any other instrument or document furnished pursuant
hereto or thereto; and (c) attaches any Notes held by it evidencing the Assigned
Interest and (i) requests that the Administrative Agent, upon request by the
Assignee, exchange the attached Notes for a new Note or Notes payable to the
Assignee and (ii) if the Assignor has retained any interest in the Assigned
Interest, requests that the Administrative Agent exchange the attached Notes for
a new Note or Notes payable to the Assignor, in each case in amounts which
reflect the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of such other
documents and information as it has deemed appropriate to make
104
its own credit analysis and decision to enter into this Assignment and
Acceptance; (c) agrees that it will, independently and without reliance upon the
Assignor, the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will perform in
accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender including, if it is
organized under the laws of a jurisdiction outside the United States, its
obligation pursuant to subsection 2.11(b) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
(the "Effective Date"). Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for acceptance by
it and recording by the Administrative Agent pursuant to the Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Administrative Agent, be earlier than five Business Days after the date
of such acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and construed
in accordance with the substantive laws of the State of New York.
105
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.
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
-------------------- --------------------
Name: Name:
Title: Title:
Accepted and Consented To:
JPMORGAN CHASE BANK,
as a Lender and as Administrative Agent
By:
--------------------
Name:
Title:
If Required by Credit Agreement:
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC., on behalf
of itself and Borrowers
By:
--------------------
Name:
Title:
106
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT
DATED AS OF APRIL 11, 2002
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Principal Commitment Percentage
Amount Assigned Assigned(2)
$ %
-------------- ---.----------------
----------
(2) Calculate the Commitment Percentage that is assigned to at least 15
decimal places and show as a percentage of the aggregate commitments of
all Lenders.
107