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EXHIBIT K.7
$150,000,000
CREDIT AGREEMENT
Dated as of ________ __, 2000
among
NUVEEN SENIOR INCOME FUND,
as Borrower,
[SPV],
as Lender,
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
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CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of , 2000 (this
"Agreement"), is among NUVEEN SENIOR INCOME FUND, a Massachusetts business trust
(the "Borrower"), [SPV], a Delaware limited liability company (the "Lender"),
and DEUTSCHE BANK AG, NEW YORK BRANCH, as Agent (in such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower is in the business of actively managing and
investing on a leveraged basis a pool of loans and participation interests in
loans;
WHEREAS, the Borrower desires to obtain Advances (as defined
below) from the Lender, subject to the terms and conditions set forth herein, in
a maximum aggregate principal amount not to exceed at any time the lesser of (i)
the Commitment Amount (as defined below) then in effect or (ii) the funds
available to the Lender for such purpose from the issuance of Commercial Paper
(as defined below) and borrowings under the Liquidity Agreement (as defined
below);
WHEREAS, the Lender is willing, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower from the proceeds of the
issuance of the Commercial Paper or, in the event that the Lender is unable to
issue Commercial Paper, from borrowings by the Lender under the Liquidity
Agreement;
WHEREAS, simultaneously herewith, the Lender will enter into the
Liquidity Agreement with one or more Liquidity Lenders (as defined below)
pursuant to which the Liquidity Lenders will agree to make loans to the Lender,
the proceeds of which will be used to make Advances to the Borrower pursuant to
this Agreement, and to make payments in respect of Lender's Commercial Paper;
and
WHEREAS, the Borrower has agreed to secure its Obligations (as
defined below) to the Lender in connection with the Advances by granting to the
Collateral Agent (as defined below) (for the benefit of the Lender, the Agent,
the Liquidity Lenders, the Liquidity Agent, the Depositary and the holders of
Commercial Paper) a first priority, perfected security interest in substantially
all of its assets pursuant to the Security Agreement (as defined below).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms. As used in this Agreement, the
following
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terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Administration Fee" has the meaning set forth in Section 2.07.
"Advance" shall have the meaning set forth in Section 2.01.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by or is under
common control with such person or is a director or officer of such
Person or of an Affiliate of such Person. For purposes of this
definition, control of a Person shall mean the power, direct or
indirect, (i) to vote 50% or more of the securities having ordinary
voting power for the election of directors of such Person, or (ii) to
direct or cause the direction of the management and policies of such
person whether by contract or otherwise.
"Agent" has the meaning set forth in the preamble to this
Agreement.
"Agent-Related Persons" means the Agent and any successor agent
arising under Section 7.08, together with their respective Affiliates
and the officers, directors, employees, agents, attorneys-in-fact of
such Persons and Affiliates.
"Aggregate Interest Component" means, with respect to any calendar
month, the sum for all Commercial Paper outstanding at any time during
such calendar month of an amount with respect to each Commercial Paper
Note outstanding at any time during such calendar month equal to the
product of (x) the Interest Component of such Commercial Paper Note
multiplied by (y) a fraction the numerator of which is the number of
days during such calendar month that such Commercial Paper Note was
outstanding and the denominator of which is the total number of days
such Commercial Paper Note was or is scheduled to be outstanding, as
the case may be.
"Asset Coverage Ratio" means with respect to the Borrower, the
ratio which the value of the Total Assets of the Borrower (as
determined by the Borrower) less all Indebtedness thereof not
represented by Senior Securities, bears to the aggregate amount of all
Senior Securities representing Indebtedness of the Borrower.
"Bankruptcy Code" means Title 11 of the United States Code, as in
effect from time to time, and any successor statute.
"Borrower Account" means the account of the Borrower initially
held at __________, or such other bank as the Borrower may designate by
notice to the Collateral Agent and the Agent.
"Borrower Collateral" has the meaning specified in the Security
Agreement.
"Borrowing Request" has the meaning specified in Section 2.02.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which
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banking institutions in the State of Illinois or the State of New York
are authorized or required to be closed.
"Cash Equivalents" means (i) securities with maturities of sixty
days or less (but in no event shall the maturity of such securities
prevent the proceeds thereof from being available to pay maturing
Commercial Paper) from the date of acquisition issued or fully
guaranteed or insured by the United States Government or any agency
thereof, (ii) certificates of deposit, eurodollar time deposits,
overnight bank deposits, bankers' acceptances and re-purchase
agreements of any commercial bank whose short-term obligations are
rated "P-1" by Moody's and, if rated by Fitch, "F-1+" by Fitch having
maturities of sixty days or less from the date of acquisition, (iii)
commercial paper having maturities of sixty days or less from the date
of acquisition, rated at least "P-1" by Moody's and, if rated by Fitch,
"F-1+" by Fitch and (iv) money market funds rated at least "P-1" by
Moody's and, if rated by Fitch, "F-1+" by Fitch.
"Closing Date" means the date of the initial Advance hereunder.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in
effect at the date of this Agreement and any subsequent provisions of
the Code, amendatory thereof, supplemental thereto or substituted
therefor.
"Collateral" has the meaning specified in the Security Agreement.
"Collateral Agent" means [Deutsche Bank AG, New York Branch], as
Lender Collateral Agent and Borrower Collateral Agent under the
Security Agreement.
"Commercial Paper" means the short-term promissory notes of the
Lender issued for the purpose of funding or maintaining Advances made
to the Borrower.
"Commercial Paper Note" means any single short-term promissory
note of the Lender which constitutes Commercial Paper.
"Commitment" means the commitment of the Lender to make Advances
to the Borrower from time to time in accordance with the terms of this
Agreement.
"Commitment Amount" means $150,000,000 as such amount may from
time to time be reduced pursuant to Section 2.03; provided, however,
that at all times on and after the Commitment Termination Date, the
Commitment Amount shall be zero.
"Commitment Termination Date" means the earliest of (i) _________,
2001 [364 days from the Closing Date] as such date may be extended in
accordance with Section 2.15, (ii) the date of the termination of the
Commitment pursuant to Section 2.03 or (iii) the Maturity Date.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which
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such Person is a party or by which it or any of its property is bound.
"Control Agreement" means the Control Agreement, dated as the date
hereof, among the Custodian, the Borrower, the Lender and the
Collateral Agent in the form attached as Exhibit C hereto, as such
agreement may be amended from time to time.
"CP Documents" means, collectively, the Commercial Paper Notes,
the Liquidity Agreement, the Depositary Agreement, the Management
Agreement, the Loan Notes and the Dealer Agreement.
"Custodian" shall have the meaning specified in the Custodian
Contract.
"Custodian Contract" means the Custodian Contract, dated as of
October 26, 1999, between Chase Bank of Texas, National Association, as
Custodian, and each fund listed in Appendix A thereto, a copy of which
is attached hereto as Exhibit G.
"Dealer" means Deutsche Bank Securities Inc. and each other person
appointed by the Lender from time to time to act as a dealer for the
Commercial Paper.
"Dealer Agreement" means the Commercial Paper Dealer Agreement
dated as of ________ __, 2000 between the Lender and Deutsche Bank
Securities Inc., as such agreement may be amended from time to time.
"Default" means any Event of Default or event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Default Rate" means a rate of interest per annum equal to 2% per
annum above the rate that would otherwise be applicable thereto.
"Depositary" has the meaning specified in the Liquidity Agreement.
"Depositary Agreement" has the meaning specified in the Liquidity
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as
in effect at the date of this Agreement and any subsequent provisions
of ERISA, amendatory thereof, supplemental thereto or substituted
therefor.
"ERISA Affiliate" means each person (as defined in Section 3(9) of
ERISA) which together with the Borrower or a Subsidiary of the Borrower
would be deemed to be a "single employer" (i) within the meaning of
Section 414(b),(c), (m) or (o) of the Code or (ii) as a result of the
Borrower or a Subsidiary of the Borrower being or having been a general
partner of such person.
"Event of Default" has the meaning specified in Section 6.01.
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"Facility Documents" means this Agreement, the Security Agreement,
the Note, the Control Agreement and the CP Documents.
"Financing Lease" means any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with the U.S. GAAP to be capitalized on a balance sheet of
the lessee.
"Fitch" shall mean Fitch IBCA.
"Fundamental Investment Policies" means, as to the Borrower, the
policies and objectives for, and limits and restrictions on, investing
by the Borrower deemed "fundamental" in the Prospectus or the Statement
of Additional Information and which policies, objectives, limits and
restrictions cannot be changed without the approval of the holders of a
majority of the Borrower's outstanding common shares.
"Governmental Authority" means 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" means, 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, counter indemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness
(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 for the purchase or payment of any such primary
obligation, (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, means, at any date, without
duplication, (a) all
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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) or which is evidenced by a note,
bond, debenture or similar instrument, (b) all obligations of such
Person under Financing Leases or Interest Rate Agreements, (c) all
obligations of such Person in respect of banker's acceptances issued or
created for the account of such Person, (d) all obligations of such
Person, whether absolute or contingent in respect of letters of credit
opened for the account of such Person and (e) any and all other
"liabilities" or other "indebtedness" of such Person as such terms are
used within the meaning of the 1940 Act. For purposes of this
definition of "Indebtedness", the amount of any derivative instrument
(including, without limitation, any swap, Interest Rate Agreement,
collar, cap, put, call, equity derivative or mortgage-backed or
debt-backed derivative) will be calculated daily on a marked-to-market
basis.
"Indemnified Amounts" has the meaning specified in Section 8.01.
"Indemnified Party" has the meaning specified in Section 8.01.
"Interest" shall mean with respect to each calendar month, an
amount equal to the sum of (i) the Aggregate Interest Component for
such calendar month, (ii) the amount of interest accrued during such
month on all Loans outstanding during such calendar month, (iii) the
Liquidity Fee payable during such calendar month and (iv) all other
fees, costs and expenses payable by the Lender pursuant to the Facility
Documents that became due during such calendar month; provided,
however, that no provision of this Agreement or the Note shall require
the payment or permit the collection of Interest in excess of the
maximum permitted by applicable law and Interest shall not be
considered paid by any distribution if at any time such distribution is
rescinded or must otherwise be returned for any reason.
"Interest Component" means the portion of the face amount of
Commercial Paper issued on a discount basis representing the discount
incurred in respect thereof.
"Interest Period" means, for each Advance, (x) if such Advance is
funded by the issuance of Commercial Paper, a period commencing on the
date of such Advance and ending on the last day of a period of from 1
to 180 days specified by the Borrower pursuant to the terms of Section
2.02 and (y) if such Advance is funded with the proceeds of Loans, the
period commencing on the date of such Advance and ending on the date
such Advance is repaid; provided, that in no event shall any Interest
Period end subsequent to the Commitment Termination Date.
"Interest Rate Agreement" means 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 the Borrower is a party.
"Investment Advisory Agreement" means the Investment Advisory
Agreement(s) set forth on Schedule II hereto.
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"Investment Policies" means, as to the Borrower, the policies and
objectives for, and limits and restrictions on, investing by the
Borrower set forth in the Registration Statement, the Prospectus and
the Statement of Additional Information relating to the Borrower and as
adopted by (or generally approved by) the board of trustees of the
Borrower or the shareholders of the Borrower from time to time.
"Lender's Account" means the account of the Lender established and
maintained with Bankers Trust Company, pursuant to the Depositary
Agreement.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or
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 agreements,
any Financing Lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under
the UCC or comparable law of any jurisdiction in respect of any of the
foregoing).
"Liquidity Agent" shall mean Deutsche Bank AG, New York Branch, as
agent for the Liquidity Lenders, and any successor agent.
"Liquidity Agreement" means the Liquidity Agreement dated as of
________ __, 2000 among the Lender, the Liquidity Lenders and the
Liquidity Agent pursuant to which the Liquidity Lenders have committed
to make Loans to the Lender the proceeds of which shall be used by the
Lender to (i) make Advances to the Borrower or (ii) make payments in
respect of maturing Commercial Paper, as such agreement may be amended,
supplemented or otherwise modified from time to time.
"Liquidity Bank" has the meaning specified in the Liquidity
Agreement.
"Liquidity Commitment" has the meaning specified in the Liquidity
Agreement.
"Liquidity Fee" has the meaning specified in the Liquidity
Agreement.
"Liquidity Lenders" has the meaning specified in the Liquidity
Agreement.
"Liquidity Termination Date" has the meaning specified in the
Liquidity Agreement.
"Loan Notes" has the meaning specified in the Liquidity Agreement.
"Loans" means the Revolving Loans and the Refunding Loans, in each
case incurred by the Lender to fund or maintain Advances made to the
Borrower.
"Management Agreement" means the Management Agreement between the
Lender and Global Securitization Services, LLC, substantially in the
form of Exhibit C to the Liquidity Agreement.
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"Material Adverse Effect" means a material adverse effect on (a)
the business, operations, property or financial condition of the
Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform any material obligations of the Borrower under this
Agreement or the Note, or (c) the validity or enforceability of a
material provision of this Agreement, the Note or the material rights
or remedies of the Agent or the Lender hereunder or thereunder.
"Maturity Date" shall mean the earlier of (i) ___________, 2002
[the date which is the second anniversary of the Closing Date], or such
later date as shall apply pursuant to Section 2.15 hereof, or (ii)
acceleration following the occurrence of an Event of Default pursuant
to Section 6.01.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"1940 Act" means the Investment Company Act of 1940, as amended,
together with all rules and regulations promulgated from time to time
thereunder.
"Note" means the promissory note made by the Borrower in favor of
the Lender, in substantially the form of Exhibit A hereto, evidencing
the aggregate obligations of the Borrower to the Lender resulting from
the Advances made by the Lender.
"Nuveen" means Nuveen Senior Loan Asset Management Inc., a
Delaware corporation, acting as investment advisor for the Borrower or
any successor or assign.
"Obligations" means the unpaid Principal of and Interest on
(including, without limitation, interest accruing after the maturity of
the Advances and interest accruing on or after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or
not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Advances and all other obligations and liabilities
of the Borrower, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, this Agreement, the Note,
any other Facility Document and any other document made, delivered or
given in connection herewith or therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all reasonable fees and
disbursements of counsel, and the allocated cost of internal counsel,
to the Agent, the Lender or the Liquidity Lenders that are required to
be paid by the Borrower pursuant to the terms of this Agreement) or
otherwise.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Permissible Investments" means loans and other investments in
which the Borrower is permitted to invest pursuant to the Prospectus,
the Registration Statement, the Statement of Additional Information,
and the Borrower's Investment Policies from time to time.
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"Permitted Liens" means (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 the Borrower in conformity with U.S. GAAP and to the reasonable
satisfaction of the Agent, (ii) Liens arising in connection with claims
for advances made by or payments due to any custodian under the
custodian contracts set forth in Schedule III hereto, (iii) any other
Liens created, incurred, assumed or suffered to exist in compliance
with the Registration Statement or the Investment Policies which Liens
are not otherwise prohibited by any Requirement of Law, do not apply to
the Collateral and secure Indebtedness in an aggregate amount not to
exceed $250,000, (iv) Liens created under the Security Agreement, (v)
restrictions on the transfer, assignment or other disposition of
Permissible Investments that arise under the documents relating to such
Permissible Investments and (vi) Liens arising in connection with
secured derivative transactions, provided that (x) such derivative
transactions do not violate the Borrower's Investment Policies, (y) the
pledged assets subject to such Liens are not maintained in the
Custodial Account and (z) for all purposes under this Agreement and the
Liquidity Agreement, the Asset Coverage Ratio of the Borrower is
calculated without taking into account the value of such pledged
assets.
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any
political subdivision or agency thereof.
"Plan" means any "employee benefit plan" as defined in Section
3(3) of ERISA subject to Title I of ERISA or any "plan" subject to
Section 4975 of the Code.
"Principal" of any Advance means the original amount advanced to
the Borrower pursuant to Sections 2.01 and 2.02, reduced from time to
time by payments in respect thereof; provided, however, that if such
Principal of such Advance shall have been reduced by any payment and
thereafter such payment is rescinded or must otherwise be returned for
any reason, such Principal of such Advance shall be increased by the
amount of such payment, all as though such payment had not been made.
"Prospectus" means the Prospectus of the Borrower, dated October
26, 1999.
"Refunding Loans" shall mean the Refunding Loans made to the
Lender by the Liquidity Lenders pursuant to Section 3.03(a) of the
Liquidity Agreement.
"Registrar, Transfer Agency and Services Agreement" means the
Registrar, Transfer Agency and Services Agreement(s) set forth in
Schedule I hereto.
"Registration Statement" means the Registration Statement of the
Borrower, declared effective on October 26, 1999.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System.
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"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System.
"Required Liquidity Lenders" has the meaning specified in the
Liquidity Agreement.
"Requirement of Law" means, as to any Person, the Certificate of
Incorporation and Bylaws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject. With respect to Borrower, "Requirements of Law" includes,
without limitation, the requirements of the 1940 Act, the Investment
Advisers Act of 1940 and the Securities Act of 1933, in each case as
amended from time to time.
"Responsible Officer" means (x) the president or any vice
president of the Borrower, or (y) with respect to financial matters,
the chief financial officer, treasurer, assistant treasurer or
controller of the Borrower and (z) as to any other matter, any other
officer of the Borrower with responsibility for such matter.
"Revolving Loans" shall mean the Revolving Loans made to the
Lender by the Liquidity Lenders pursuant to Section 3.02(a) of the
Liquidity Agreement.
"Security Agreement" means the Security Agreement dated as of the
Closing Date among the Borrower, the Lender, the Agent, the Liquidity
Agent and the Collateral Agent, substantially in the form of Exhibit B
hereto, as such agreement may be amended from time to time.
"Senior Security" means any bond, debenture, note or similar
obligation or instrument constituting a security and evidencing
Indebtedness, including, without limitation, all borrowings under this
Agreement and any share of beneficial interest of the Borrower, of a
class having priority over any other class of shares of the Borrower as
to distribution of assets or payment of dividends; provided, however,
that "Senior Security" shall not include any promissory note or other
evidence of indebtedness in any case where such a loan is for temporary
purposes only and in an amount not exceeding five percent of the value
of the Total Assets of the Borrower at the time when the loan is made.
A loan shall be presumed to be for temporary purposes if it is repaid
within sixty days and is not extended or renewed; otherwise it shall be
presumed not to be for temporary purposes. Any such presumption may be
rebutted by evidence to the contrary.
"Statement of Additional Information" means the Statement of
Additional Information of the Borrower, dated October 26, 1999.
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"Subsidiary" means, as to any Person at any time of determination,
a corporation, partnership or other entity (other than any Borrower or
any other investment company or similar investment entity existing
under foreign law substantially equivalent to an investment company) of
which shares of stock 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 directly or indirectly through one or more
intermediaries or Subsidiaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Taxes" has the meaning specified in Section 2.12(a).
"Total Assets" means, at any time, (x) all assets of the Borrower
which in accordance with U.S. GAAP would be classified as assets on the
balance sheet of the Borrower prepared as of such time less (y) the
amount of any such assets that consist of unsecured senior loans (it
being understood that for purposes of this clause (y) commercial paper
and other overnight investments will not be considered unsecured senior
loans) or participations in unsecured senior loans.
"UCC" means the Uniform Commercial Code as from time to time in
effect in the specified jurisdiction.
"U.S. GAAP" has the meaning specified in Section 1.04.
Section 1.02 Other Terms. All terms used in Article 9 of the UCC
in the State of New York, and not specifically defined herein, are used herein
as defined in such Article 9.
Section 1.03 Computation of Time Periods. Unless otherwise stated
in this Agreement, in the computation of a period of time from a specified date
to a later specified date, the word "from" means "from and including" and the
words "to" and "until" each means "to but excluding."
Section 1.04 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States in effect from time to time
("U.S. GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01 Commitment. On the terms and conditions hereinafter
set forth, the Lender hereby agrees to make advances (each, an "Advance") to the
Borrower from time to time on any Business Day during the period from the date
hereof to the Commitment Termination Date. Under no circumstances shall the
Lender make any Advance if (i) after giving effect to
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such Advance, the aggregate outstanding Principal of Advances would exceed the
Commitment Amount or (ii) the amount of such Advance would exceed the funds
available to the Lender for such purpose from the issuance of Commercial Paper
and borrowings from the Liquidity Lenders under the Liquidity Agreement. Each
Advance shall be secured by the Borrower Collateral and repaid pursuant to the
terms hereof.
Section 2.02 Making the Advances. Each Advance shall be made on
notice, given not later than 12:00 p.m. (New York City time) on the Business Day
prior to the date of the proposed Advance, by the Borrower to the Agent provided
that in the case of the initial Advance hereunder such notice shall be given not
later than 11:30 a.m. (New York City time) on the second Business Day preceding
the date of such initial Advance. Such notice shall be set forth in a form of a
borrowing request (the "Borrowing Request") substantially in the form of Exhibit
E to this Agreement, and shall specify (i) the desired amount which shall be at
least $5,000,000 and shall be an integral multiple of $1,000,000, (ii) the date
for such Advance and (iii) the duration of the Interest Period for such Advance.
Subject to the provisions of Section 2.01 of the Liquidity Agreement, the
Borrower shall provide to the Agent and the Manager instructions regarding the
amount and maturity of Commercial Paper to be issued, from time to time, in
order to pay any maturing Commercial Paper obligations. The Agent shall promptly
notify the Borrower if the Lender is unable to obtain sufficient funding for the
Advance through the issuance of Commercial Paper having a maturity of the
specified duration of such Interest Period, and the Borrower shall revise its
request as the Borrower and the Agent shall agree. In the event that the Lender
is unable to obtain sufficient funding for the Advance through the issuance of
Commercial Paper, then the Agent shall so notify the Borrower by 11:00 a.m. (New
York City time) on the date for such Advance. In the event that upon receiving
such notice the Borrower shall still wish to obtain the requested Advance, the
Borrower shall so notify the Agent by 11:45 a.m. (New York City time) specifying
in any such notice the Interest Period, if any, applicable to such Advance. In
such event the Lender shall request a Revolving Loan in accordance with the
terms of the Liquidity Agreement (no later than 12:30 p.m. New York City time)
to fund such Advance. On the date of any Advance and upon satisfaction of the
applicable conditions set forth in Article III, the Lender shall make available
to the Borrower the amount of such Advance by deposit of such amount in lawful
money of the United States in immediately available funds to the Borrower
Account.
Section 2.03 Termination or Reduction of the Commitment Amount.
The Borrower may, upon at least five Business Days' written notice to the Agent,
terminate in whole or permanently reduce in part the unused portion of the
Commitment Amount; provided, that (i) the Commitment Amount may not be
terminated unless the outstanding Principal of Advances has been reduced to zero
and (ii) in no event may the Commitment Amount be reduced in part to an amount
that is less than the outstanding Principal of Advances on the date of such
reduction; provided, further, that each partial reduction shall be in an amount
equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. In the
case of the termination or reduction of the Commitment Amount pursuant to this
Section 2.03, Interest accrued or to accrue on the amount of any prepayment
relating thereto and any unpaid fees, costs and expenses accrued with respect
thereto shall be paid by the Borrower on the date of such termination or
reduction.
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Section 2.04 Prepayments. (a) Optional. The Borrower may, upon at
least three Business Days' written notice to the Agent, prepay the outstanding
Principal of one or more Advances, in whole or in part, together with, in the
case of a prepayment in full of all outstanding Advances, Interest accrued to
the date of such prepayment and any Interest that will accrue in respect of any
related outstanding Commercial Paper through the date of maturity and Loans
through the date of the repayment thereof, and all accrued and unpaid fees,
costs and expenses then due and payable by the Borrower under the Facility
Documents (including any breakage costs relating to the Loans used to fund the
Advances being prepaid).
(b) Mandatory. If, at any time and from time to time, either (i)
the Asset Coverage Ratio of the Borrower shall be less than 300%, or (ii) the
aggregate amount of Advances made to the Borrower then outstanding exceeds the
borrowing limits provided in the 1940 Act, the Borrower's Prospectus or the
Registration Statement, then, within four Business Days thereafter, the Borrower
shall repay the Advances made to the Borrower to the extent necessary to ensure
that (x) the Asset Coverage Ratio of the Borrower after such payment is at least
300% and (y) the aggregate principal of Advances made to the Borrower then
outstanding does not after such payments exceed such limits as set forth in the
1940 Act, the Borrower's Prospectus or the Registration Statement, as the case
may be.
(c) Investments in Lender's Account. On each Business Day the
Agent shall, to the extent practicable, cause funds on deposit in the Lender's
Account not being used on such day to make payments in respect of maturing
Commercial Paper, Refunding Loans, Revolving Loans or other obligations of the
Lender or the Borrower then due and payable under the Facility Documents to be
invested in Cash Equivalents. Unless and until a Default shall have occurred and
be continuing, any amounts earned in respect of such investments in Cash
Equivalents shall be paid to the Borrower by means of a transfer to the Borrower
Account. During the continuance of a Default or an Event of Default, any such
amounts shall be retained by the Lender and applied to the amounts due
hereunder.
Section 2.05 Payment of Interest. The Borrower shall pay Interest
with respect to the outstanding Advances from the date of the first such Advance
until the Principal amount of all such Advances shall be paid in full, such
Interest to be due and payable on the fifth Business Day of each calendar month
(in respect of the Interest accrued during the preceding calendar month), upon
the prepayment or payment in full of all outstanding Advances and on the
Commitment Termination Date. The Agent shall provide the Borrower with a notice
setting forth the Interest accrued with respect to each calendar month not later
than the third Business Day of the immediately succeeding calendar month.
Section 2.06 Repayment on Commitment Termination Date. On the
Commitment Termination Date all Advances outstanding shall mature and be payable
in full, the Commitment of the Lender shall be reduced to zero and the Borrower
shall repay to the Agent, for the account of the Lender, all outstanding
Principal of and unpaid Interest accrued (and to accrue through the repayment
date of the related Commercial Paper and Loans) on the Advances. Commencing on
the Commitment Termination Date, all amounts on deposit with the Custodian or in
the Borrower Account shall be applied to pay Principal and Interest on the
outstanding Advances and the other Obligations of the Borrower under the
Facility Documents. Such
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payments shall be applied in accordance with the order of priority set forth in
Section 14 of the Security Agreement.
Section 2.07 Fees. The Borrower shall pay to the Lender for the
account of the Agent an administration fee in the amount of $______ per fiscal
quarter (the "Administration Fee"). The Administration Fee shall be payable (in
arrears) on the fifth Business Day of each fiscal quarter during the term of
this Agreement in respect of the immediately preceding fiscal quarter.
Section 2.08 Payments and Computations, Etc. (a) All amounts to be
paid or deposited by the Borrower hereunder shall be paid or deposited in
accordance with the terms hereof no later than 1:00 P.M. (New York City time) on
the day when due in lawful money of the United States of America in immediately
available funds to the Lender's Account. Amounts received by the Agent after
1:00 P.M. (New York City time) on any Business Day shall be deemed to have been
received on the next Business Day. The Borrower shall, to the extent permitted
by law, pay to the Agent interest on all amounts not paid or deposited when due
and payable hereunder at the Default Rate, payable on demand; provided, however,
that such Default Rate shall not at any time exceed the maximum interest rate
permitted by applicable law.
(b) Each determination by the Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error. The
Lender shall, at the request of the Borrower, deliver to the Borrower a
statement showing the basis for calculation of any Interest owing pursuant to
Section 2.05.
(c) Whenever any payment hereunder or under the Note shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of Interest.
Section 2.09 Evidence of Advances. (a) The Borrower's obligation
to pay resulting from each Advance made hereunder by the Lender shall be
evidenced by the Note, delivered pursuant to Article III. The Lender shall note
on its internal records each Advance made by it and payment thereon; provided
that failure to make any such notation shall not adversely affect the Lender's
rights with respect to any Advance.
(b) Although the Note shall be dated the date of this Agreement,
Interest shall be payable only for the period during which Advances are
outstanding thereunder. In addition, although the stated principal amount of the
Note shall be equal to the Commitment Amount, such Note shall be enforceable
with respect to the Borrower's obligations to pay the Principal thereof only to
the extent of the unpaid Principal amount of the Advances outstanding thereunder
at the time such enforcement shall be sought.
Section 2.10 Requirements of Law. (a) In the event that any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by the Lender or any Liquidity Lender under the Liquidity Agreement
with any request or directive (whether or not having the force of law but, if
not having the force of law, generally applicable to and
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complied with by lenders of the same general type as the Lender and the
Liquidity Lender in the relevant jurisdiction) from any central bank or other
Governmental Authority made subsequent to the Closing Date:
(i) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by,
the Lender or any Liquidity Lender, or
(ii) shall impose on the Lender or any Liquidity Lender, or any
other condition;
and the result of any of the foregoing is to increase the cost to the Lender, by
an amount which the Lender deems to be material, of making, converting into,
continuing or maintaining Advances or to reduce any amount receivable hereunder
in respect thereof then, in any such case, the Borrower shall promptly pay the
Lender, upon its demand, any additional amounts necessary to compensate the
Lender for such increased cost or reduced amount receivable. If the Lender
becomes entitled to claim any additional amounts pursuant to this subsection, it
shall promptly notify the Borrower, through the Agent, of the event by reason of
which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this subsection submitted by the Lender, through the Agent,
to the Borrower shall be prima facie evidence of the accuracy of the information
so recorded. This covenant shall survive the termination of this Agreement and
the payment of the Note and all other amounts payable hereunder for one year.
(b) If, after the date of this Agreement, the introduction of any
applicable law, rule, regulation or guideline regarding capital adequacy, or any
change therein or any change in the interpretation or administration thereof by
any Governmental Authority charged with the interpretation or administration
thereof, affects the amount of capital required or expected to be maintained by
the Lender or any Liquidity Lender, or any corporation controlling the Lender or
any Liquidity Lender, and the Lender, the Liquidity Lender or such corporation
(taking into consideration the Lender's or Liquidity Lender's or such
corporation's policies with respect to capital adequacy) determines that the
amount of capital maintained by the Lender or the Liquidity Lender or such
corporation which is attributable to or based upon the Advances, the Commitment
or this Agreement must be increased as a consequence of such introduction or
change, then, upon demand of the Agent at the request of the Lender, the
Borrower shall immediately pay to the Agent on behalf of the Lender or the
Liquidity Lender, additional amounts sufficient to compensate the Lender, the
Liquidity Lender or such corporation for the increased costs to the Lender, the
Liquidity Lender or such corporation of such increased capital. Any such demand
shall be accompanied by a certificate of the Lender or the Liquidity Lender
setting forth in reasonable detail the computation of any such increased costs,
provided that the Lender or the Liquidity Lender shall not be required to
disclose confidential information. This covenant shall survive the termination
of this Agreement and the payment of the Note and all other amounts payable
hereunder for one year.
(c) The Lender will promptly notify the Borrower, through the
Agent, of any event of which it has knowledge that will entitle the Lender or
any Liquidity Lender to compensation pursuant to Section 2.10(a) or (b) above.
No failure by the Lender or any
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Liquidity Lender to give (or delay in giving) such notice shall adversely affect
the Lender's or Liquidity Lender's rights to such compensation, except that the
Borrower shall have no obligation to compensate the Lender or any Liquidity
Lender for any cost or reduction incurred or accrued by it more than one year
before the Lender or any Liquidity Lender gives notice of the event giving rise
to such cost or reduction as required by the preceding sentence (unless such
cost or reduction is incurred or accrued by the Lender or any Liquidity Lender
more than 180 days before the delivery of such notice as a result of the
retroactive application by any Governmental Authority of any Requirement of Law,
applicable law, rule or guideline referred to in Section 2.10(a) or (b)).
Section 2.11 Indemnity. The Borrower agrees to indemnify the
Lender and to hold the Lender harmless from any loss or expense which the Lender
may sustain or incur as a consequence of (a) default by the Borrower in payment
when due of the principal amount of or interest on any Advance, (b) default by
the Borrower in making a borrowing of Advances after the Borrower has given a
notice requesting the same in accordance with the provisions of this Agreement,
(c) default by the Borrower in making any prepayment after the Borrower has
given a notice thereof in accordance with the provisions of this Agreement or
(d) the making by the Borrower of a prepayment (whether such prepayment is
voluntary, optional, mandatory or upon acceleration of such Advances) of
Advances on a day which is not the last day of an Interest Period with respect
thereto, including, without limitation, in each case, any such loss or expense
arising from the reemployment of funds (but, otherwise, excluding in all cases
consequential damages and loss of profits relating thereto) obtained by it or
from fees payable to terminate the deposits from which such funds were obtained.
This covenant shall survive the termination of this Agreement and the payment of
the Note and all other amounts payable hereunder for one year.
Section 2.12 Net Payments; Taxes. (a) All payments made by the
Borrower hereunder or under the Note will be made without setoff, counterclaim
or defense. All such payments will be made free and clear of, and without
deduction or withholding for or on account of, any present or future taxes,
levies, imposts, duties, fees, assessments and other charges of whatever nature
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority or any political subdivision or taxing authority thereof
or therein with respect to such payments (but excluding, except as provided in
the second succeeding sentence, in the case of the Agent net income or profits
taxes and capital taxes and franchise taxes (imposed in lieu of net income
taxes) imposed on the Agent by any Governmental Authority or any political
subdivision or taxing authority thereof or therein in which the principal office
of the Agent is located) and all interest, penalties or similar liabilities with
respect to such non-excluded taxes, levies, imposts, duties, fees, assessments
or other charges (all such non-excluded taxes, levies, imposts, duties, charges
and fees being hereinafter called "Taxes"). If any Taxes shall be required by
law to be deducted or withheld from or in respect of any sum payable hereunder
or under any other Facility Document to the Lender or the Agent (i) the sum
payable by the Borrower shall be increased to the extent necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.12), the Lender
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or the Agent receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law. If any amounts
are payable in respect of Taxes pursuant to the preceding sentence, the Borrower
agrees to reimburse the Lender, upon the written request of the Lender, for net
income or profits taxes or net profit taxes and capital taxes and franchise
taxes (imposed in lieu of net income taxes) imposed on the Lender by any
Governmental Authority or any political subdivision or taxing authority thereof
or therein in which the principal office or applicable lending office of the
Lender is located and for any withholding of taxes as the Lender shall determine
are payable by, or withheld from, the Lender, in respect of such amounts so paid
to or on behalf of the Lender pursuant to the preceding sentence and in respect
of any amounts paid to or on behalf of the Lender pursuant to this sentence. If
any additional amounts are due to the Liquidity Lenders under the Liquidity
Agreement, such amounts shall be paid by the Borrower to the Lender.
(b) The Borrower agrees to pay any present or future stamp,
recording or documentary taxes or similar levies that arise from any payment
made hereunder or under the other Facility Documents or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or the
other Facility Documents (hereinafter referred to as "Other Taxes").
(c) Within thirty days after the date on which the payment of any
Taxes is due pursuant to the applicable law, the Borrower will furnish to the
Lender, at its address referred to in Section 9.02, the original or a certified
copy of a receipt or other documents reasonably acceptable to the Lender
evidencing payment thereof.
Section 2.13 Use of Proceeds. The proceeds of the Advances shall
be used by the Borrower to make Permissible Investments.
Section 2.14 Order of Payments by Lender. The Lender shall apply
prepayments or repayments of Advances and Interest thereon received in the
Lender's Account prior to the occurrence of an Event of Default under this
Agreement or an "event of default" under the Liquidity Agreement in the
following order: first, to the payment of principal and interest on Loans, and
second, to the payment of maturing Commercial Paper.
Section 2.15 Extension of Commitment Termination Date. The Lender
agrees that if the Borrower shall request the Lender to seek an extension of the
Liquidity Termination Date in accordance with the terms of Section 4.03 of the
Liquidity Agreement, the Lender shall request such extension. If the Liquidity
Termination Date is at any time extended pursuant to Section 4.03 of the
Liquidity Agreement, then (x) the date set forth in clause (i) of the definition
of Commitment Termination Date contained herein shall automatically be extended
to the date which is the fifth day prior to the date to which the Liquidity
Termination Date has been extended and (y) the date set forth in clause (i) of
the definition of Maturity Date contained herein shall automatically be extended
to the date which is one year after the date to which the Liquidity Termination
Date has been extended.
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ARTICLE III
CONDITIONS OF LENDING
Section 3.01 Conditions to Execution. The parties acknowledge that
the execution, delivery and effectiveness of this Agreement are subject to the
satisfaction of the following conditions precedent:
(a) Credit Agreement. The Agent shall have received this
Agreement, executed and delivered by a Responsible Officer of the
Borrower.
(b) Other Agreements. The Agent shall have received the Security
Agreement (along with acknowledged copies (or other evidence
satisfactory to the Agent and its counsel) of financing statements duly
filed under the UCC in all jurisdictions necessary or, in the opinion
of the Agent, desirable to perfect the security interests created or
purported to be created by the Security Agreement), the Liquidity
Agreement, the Control Agreement, the Depositary Agreement and the
Management Agreement duly executed and delivered by the parties
thereto.
(c) Incumbency Certificates. The Agent shall have received an
incumbency certificate of the Borrower as of the Closing Date, dated
the Closing Date, executed by a Responsible Officer of the Borrower and
its secretary or assistant secretary and therein containing the name,
office or position and specimen signature of each Person who is
authorized by the Borrower to execute this Agreement, the Note and any
and all other documentation to be executed by the Borrower in
connection with this Agreement.
(d) Authorization Proceedings. The Agent shall have received a
copy of the resolutions of the board of directors or trustees of the
Borrower as of the Closing Date, certified as true and correct by the
secretary of the Borrower and authorizing (i) the execution, delivery
and performance of this Agreement, the Note and any other documents
relating thereto, and naming one or more Persons who are authorized to
execute this Agreement and the Note on behalf of, and as the act of,
the Borrower and (ii) the borrowings contemplated hereunder, certified
by the secretary or an assistant secretary of the Borrower as of the
Closing Date, which certificate states that the resolutions thereby
certified have not been amended, modified, revoked or rescinded.
(e) Organizational and Related Documents. (i) The Agent shall have
received copies of the declaration of trust, and by-laws, or other
similar governing document, of the Borrower as of the Closing Date,
certified as of the Closing Date as complete and correct copies thereof
by the secretary or an assistant secretary of the Borrower, (ii) the
Agent shall have received true and correct copies, certified as of the
Closing Date as to authenticity by the secretary or assistant secretary
of Borrower, of the Prospectus (and the Borrower shall provide a copy
of such Prospectus for delivery to the Lender), the Registrar, Transfer
Agency and Services Agreement(s), the Custodian Contract, the
Investment Advisory Agreement(s), the Registration Statement and the
Statement of Additional Information, all of which are current, and such
other documents or instruments
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as may be reasonably requested by the Agent, including, without
limitation, a copy of any debt instrument, security agreement or other
material contract to which the Borrower may be a party (except for
portfolio investments).
(f) Legal Opinion. The Agent shall have received the executed
legal opinion(s) of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ substantially in the form of
Exhibit F hereto, and such legal opinion(s) shall be satisfactory in
form and substance to the Agent and its counsel.
(g) Note. The Agent shall have received, for the account of the
Lender, the Note conforming to the requirements of this Agreement and
executed by a Responsible Officer of the Borrower.
(h) No Default. The Agent shall have received a certificate signed
by a Responsible Officer of the Borrower therein certifying that no
Default or Event of Default shall have occurred and be continuing as of
the Closing Date.
(i) Representations and Warranties. All representations and
warranties contained in Article IV shall be true and correct in all
material respects on the Closing Date as if made on the Closing Date.
(j) Financial Information. The Agent shall have received, with a
copy for the Lender and each Liquidity Lender, the most recent publicly
available financial information (which includes a list of portfolio
securities) for the Borrower.
(k) Factual Disclosures. The Agent shall have received such
information regarding litigation, tax, accounting, labor, insurance,
pension liabilities (actual or contingent), real estate leases,
material contracts, debt agreements, property ownership and contingent
liabilities concerning Borrower and its Subsidiaries as the Agent may
request, and all of such information shall be satisfactory to the Agent
and its counsel.
(l) Capital. The Borrower shall have equity capital in a net
amount equal to at least two times the amount of the Commitment in
effect on the Closing Date.
(m) Fees. The Agent shall have received satisfactory evidence that
all fees and expenses payable by the Borrower hereunder or in
connection herewith on or prior to the Closing Date have been paid in
full.
(n) Further Assurances. The Agent shall have received such
additional documents as it may reasonably request.
Section 3.02 Conditions to Each Advance. The agreement of the
Lender to make any Advance requested to be made by it on any date is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by the Borrower in or pursuant to the Facility
Documents to which it is a party shall be true and correct in all
material respects on and as of the date of any
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Advance as if made on and as of the date such Advance is made, except
to the extent any such representation and warranty expressly relates to
an earlier date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Advance
requested to be made on such date.
(c) Maximum Borrowing Limitation. After giving effect to the
proposed Advance to be made, the Asset Coverage Ratio of the Borrower
shall not be less than 300% and the 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 limit set forth in its Prospectus, the Registration
Statement, the Statement of Additional Information or the 1940 Act, as
the case may be.
(d) Regulation U; Forms U-1 or G-3. The Lender shall be satisfied
that the Advance and the use of proceeds thereof in respect of the
Borrower comply in all respects with Regulation U. To the extent
required by Regulation U, the Agent shall have received a copy of
either (i) Form U-1 or Form G-3, duly executed and delivered by a
Responsible Officer of the Borrower and completed for delivery to the
Lender, in form acceptable to the Agent, or (ii) a current list of
"margin stock" (as defined in Regulation U) from the Borrower, in form
acceptable to the Agent and in compliance with Section 221.3(c)(2) of
Regulation U.
(e) The Liquidity Agreement. The Liquidity Agreement is valid and
binding on and enforceable against the Liquidity Lenders and after
giving effect to such Advance, the Liquidity Commitment is at least
1.03 times the aggregate Principal amount of all outstanding Advances.
(f) Availability of Funds. The Lender has sufficient funds
available to it to make such Advance, such funds having been obtained
through the issuance of Commercial Paper or the borrowing of such funds
from the Liquidity Lenders.
(g) Governmental Authority Limitation. There exists no order,
judgment or decree of any court or Governmental Authority or arbitrator
which enjoins or restrains the Lender from making Advances and no law,
rule or regulation applicable to the Lender and no request or directive
(whether or not having the force of law) from any court or Governmental
Authority with jurisdiction over the Lender, which prohibits the
Lender, or requires that the Lender refrain, from making Advances.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date of such Advance that
the conditions contained in this Section 3.02(a), (b) and (c) have been
satisfied.
ARTICLE IV
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REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Financial Condition. The audited financial statements of
the Borrower for the fiscal year end most recently ended that have
heretofore been furnished to the Lender, if any, present fairly the
consolidated financial condition of the Borrower as at such date. All
such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with the U.S. GAAP (except as
may be disclosed otherwise therein). The Borrower did not have, at the
date of the financial statements referred to above, any material
Guarantee Obligation, material contingent liability or material
liability for taxes, or any material long-term lease or forward or
long-term commitment, including, without limitation, any material
interest rate or foreign currency swap or exchange transaction, which
is not reflected in the foregoing statements or in the notes thereto
and which is material in relation to the consolidated financial
condition of the Borrower at such date.
(b) No Change. Since the later of (x) the date of the
organization of the Borrower or (y) the date of the most recent
financial statements referred to in subsection (a) above to the Closing
Date, there has been no material adverse change in the business,
financial condition, assets, properties or operation of the Borrower.
(c) Existence, Compliance with Law. The Borrower (i) is duly
formed, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has the power and authority and
the legal right to own its property and to conduct the business in
which it is currently engaged, (iii) is duly qualified as a
Massachusetts business trust and is in good standing under the laws of
each jurisdiction where its ownership of property or the conduct of its
business requires such qualification and (iv) is in compliance with all
Requirements of Law except to the extent that the failure to comply
therewith would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect. The shares of the Borrower have been duly
authorized.
(d) Power; Authorization; Enforceable Obligations. The
Borrower has the power and authority, and the legal right, to make,
deliver and perform the Facility Documents to which it is a party and
to borrow hereunder and has taken all necessary action to authorize (i)
the borrowings on the terms and conditions of this Agreement and the
Notes and (ii) the execution, delivery and performance of the Facility
Documents to which it is a party. No consent or authorization of,
filing with or other act by or in respect of, any Governmental
Authority or any other Person that has not been made or obtained is
required in connection with the borrowings hereunder or with the
execution, delivery or performance by the Borrower, or the validity or
enforceability against the Borrower, of this Agreement or the other
Facility Documents. This Agreement and each of the other Facility
Documents to which the Borrower is a party has been, and the Note will
be, duly executed and delivered by the Borrower. This Agreement and
each of the other Facility Documents to which the Borrower is a party
constitutes, and the Note when
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executed and delivered will constitute, a legal, valid and binding
obligation of the Borrower enforceable against the Borrower 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).
(e) No Legal Bar. The execution, delivery and performance of
this Agreement and the other Facility Documents by the Borrower, the
borrowings hereunder and the use of the proceeds thereof by the
Borrower will not (i) violate any Requirement of Law or Contractual
Obligation of the Borrower, (ii) result in, or require, the creation or
imposition of any Lien on any of its properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation with respect to
the Borrower, (iii) require the consent of any Governmental Authority
or any other Person with respect to the Borrower or (iv) conflict with,
result in a breach of, or constitute a default under, the
organizational and constitutive documents of the Borrower.
(f) No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is
pending or, to the knowledge of the Borrower, threatened against the
Borrower or against any of its properties or revenues or by or against
any "Affiliated Person" of the Borrower, within the meaning of the 1940
Act (i) with respect to this Agreement or the other Facility Documents
or any of the transactions contemplated hereby or thereby, or (ii)
which would reasonably be expected to have a Material Adverse Effect.
(g) Ownership of Property; Liens. The Borrower has good record
and marketable title to all its property, and none of such property is
subject to any Liens except for Permitted Liens.
(h) No Default; Burdensome Restrictions. The Borrower is not
in default under or with respect to any of its Contractual Obligations
in any respect which would reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is
continuing. No Requirement of Law or Contractual Obligation of the
Borrower would reasonably be expected to have a Material Adverse Effect
on the Borrower.
(i) Taxes. The Borrower has timely filed all federal income
tax returns and all material tax returns, statements, forms and reports domestic
and foreign required to be filed by it and has paid all material taxes assessed
and payable by it which have become due (other than any taxes, fees or other
charges the amount or validity of which are currently being contested in good
faith by appropriate proceedings and fully provided for on the financial
statements of the Borrower in accordance with U.S. GAAP). The Borrower has at
all times paid, or has provided adequate reserves (in the good faith judgment of
the management of the Borrower) for the payment of, all federal, state and
foreign income taxes applicable for all prior fiscal years and for the current
fiscal year to date. There is no material action, suit, proceeding,
investigation, audit, or claim now pending or, to the knowledge of the Borrower,
threatened by
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any authority regarding any taxes relating to the Borrower. The Borrower has not
entered into an agreement or waiver or been requested to enter into an agreement
or waiver extending any statute of limitations relating to the payment or
collection of taxes of the Borrower, or is aware of any circumstances that would
cause the taxable years or other taxable periods of the Borrower not to be
subject to the normally applicable statute of limitations.
(j) Regulated Investment Company. The Borrower is a "regulated
investment company" as defined in the Code.
(k) Code Compliance. The Borrower has complied with all
requirements of the Code applicable to regulated investment companies,
so as to be relieved of federal income tax on net investment income and
net capital gains distributed by it.
(l) Federal Regulations. The Borrower has and will furnish to
the Agent and the Lender statements in conformity with the requirements
of FR Form U-1 or FR Form G-3 referred to in Regulation U. The Borrower
is not subject to regulation under any Federal or State statute or
regulation (other than Regulation T, U and X of the Board of Governors
of the Federal Reserve System and the ▇▇▇▇ ▇▇▇) which limits its
ability to incur Indebtedness.
(m) No ERISA Plans. Neither the Borrower nor any Subsidiary of
the Borrower nor any ERISA Affiliate has ever maintained or contributed
to (or had an obligation to contribute to) any Plan.
(n) Subsidiaries. The Borrower has no Subsidiaries and no
equity investment or interest in any other Person (other than portfolio
investments permitted by its Investment Policies).
(o) Purpose of Advances. The proceeds of the Advances shall be
used solely to finance the purchase and holding of portfolio assets of
the Borrower consisting of Permissible Investments and for other lawful
corporate purposes in the usual and normal course of the Borrower's
business.
(p) Registration of the Borrower. The Borrower is registered
as a non-diversified, closed-end management investment company under
the 1940 Act.
(q) Offering in Compliance with Securities Laws. The Borrower
has issued its common shares of beneficial interests pursuant to the
Registration Statement, which was declared an effective registration
statement on Form N-2 on October 26, 1999, and such issuance materially
complied with all Federal and State securities laws applicable thereto.
(r) Investment Policies, Prospectus. The Borrower is in
compliance in all material respects with all of its Investment
Policies, and is permitted to borrow hereunder pursuant to the limits
and restrictions set forth in its Prospectus, the Registration
Statement and the Statement of Additional Information.
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(s) Accuracy and Completeness of Information. All factual
information heretofore or contemporaneously furnished by or on behalf
of the Borrower in writing to the Agent, the Lender or the Liquidity
Lenders for purposes of or in connection with this Agreement or any
transaction contemplated hereby (in each case, as amended, superseded,
supplemented or otherwise modified in good faith with the knowledge of
the Agent, the Lender or the Liquidity Lenders) is (except for
projections and forward looking statements), and all other such factual
information hereafter furnished by or on behalf of the Borrower to the
Agent, the Lender or the Liquidity Lenders (in each case, as amended,
superseded, supplemented or otherwise modified in good faith with the
knowledge of the Agent, the Lender or the Liquidity Lenders) will be
(except for projections and forward looking statements), true and
accurate in every material respect under the circumstances on the date
as of which such information is dated or certified, 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
(taken as a whole) not misleading under the circumstances on the date
as of which such information is dated or certified.
(t) Affiliated Persons. To the best knowledge of the Borrower,
the Borrower, together with its Affiliates is not an "Affiliated
Person" (as defined in the ▇▇▇▇ ▇▇▇) of the Agent, the Lender or any
Liquidity Lender.
(u) Affiliations. As of the Closing Date, the common shares of
the Borrower are listed on the New York Stock Exchange.
ARTICLE V
COVENANTS OF THE BORROWER
Section 5.01 Affirmative Covenants. Until the later of the
Commitment Termination Date and the date on which no Advances shall be
outstanding and all Obligations of the Borrower shall be paid in full, the
Borrower agrees to the following from and after the Closing Date:
(a) Financial Statements. The Borrower shall furnish to the Agent
(with copies for the Lender and each Liquidity Lender):
(i) as soon as available and in any event within ninety days
after the end of each fiscal year of the Borrower, a statement of
assets and liabilities of the Borrower as at the end of such fiscal
year, a statement of operations for such fiscal year, if any, 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 U.S. 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 KPMG Peat Marwick LLP or other independent
certified public accountants of recognized
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standing, all audited by KPMG Peat Marwick LLP or other independent
certified public accountants of recognized standing and accompanied by
a report of such accountants, without material qualification;
(ii) as soon as available and in any event within seventy-five
days after the close of the first six-month period of each fiscal year
of the 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, U.S. GAAP (as consistently applied) and consistency by a
Responsible Officer of the Borrower; and
(iii) as soon as available, but in any event not later than
fifteen days after the end of each month of each fiscal year of the
Borrower, the net asset value sheet of the Borrower as at the end of
such month, in the form and detail similar to those customarily
prepared by the Borrower's management for internal use, certified by a
Responsible Officer of the Borrower as being fairly stated in all
material respects; provided, however, that if the Borrower has Advances
outstanding, the Borrower shall provide the Lender (which may be done
by facsimile) with (x) such net asset value sheet described above in
this subsection and (y) a certificate of a Responsible Officer of the
Borrower showing in reasonable detail the calculations supporting the
Borrower's compliance with Section 5.02(a), within fifteen days after
the end of each calendar month so long as any Advances to the Borrower
remain outstanding;
all such financial statements fairly present the financial condition of the
Borrower and are complete and correct in all material respects (subject to
normal year end adjustments) and shall be prepared in reasonable detail and in
accordance with U.S. 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).
(b) Certificates; Other Information. The Borrower shall furnish to the
Agent (with a copy to be delivered to the Lender, the Rating Agencies and each
Liquidity Lender):
(i) concurrently with the delivery of the financial statements
referred to in Section 5.01(a)(i), (ii) and (iii) and the semi-annual
report in Section 5.01(b)(iii), a certificate of a Responsible Officer,
in substantially the form of Exhibit D hereto, stating that, to the
best of such Responsible Officer's of the Borrower knowledge, the
Borrower during such period has observed or performed all of its
covenants and other agreements, and satisfied every other condition,
contained in this Agreement and the other Facility Documents to be
observed, performed or satisfied by it, and that no Default or Event of
Default has occurred and is continuing except as specified in such
certificate;
(ii) within five Business Days after the same are mailed to, or
filed with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority, copies of each Registration Statement
and any amendments thereto, each
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revised Prospectus or Statement of Additional Information and the
annual and semi-annual financial reports to shareholders;
(iii) as soon as available, but in any event not later than
seventy-five days after the end of each six-month period, a certificate
of a Responsible Officer of the Borrower stating that the list of the
Borrower's portfolio investments attached to such certificate is true
and correct;
(iv) within 30 days following the end of each quarter, a list
setting forth each of the senior loan assets held by the Borrower and
the value thereof, in each case as of the last day of such quarter; and
(v) promptly, such additional financial and other
information as the Lender may from time to time reasonably request,
including, but not limited to, copies of all changes to the Prospectus
and Registration Statement and information reasonably required by the
Manager to perform its services in accordance with the Management
Agreement.
(c) Payment of Obligations. The Borrower shall pay, discharge or
otherwise satisfy at or before maturity or before they become delinquent as the
case may be, all its material Indebtedness (except for an aggregate amount
outstanding at any one time of up to $2,000,000) of whatever nature, except
where the amount or validity thereof is currently being contested in good faith
by appropriate proceedings and reserves with respect thereto have been provided
on the books of the Borrower to the reasonable satisfaction of the Agent.
(d) Conduct of Business and Maintenance of Existence. The Borrower
shall continue to engage in its investment business in accordance with its
Investment Policies, Prospectus and the Registration Statement of the Borrower
and preserve, renew and keep in full force and effect its existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except for any such rights,
privileges and franchises which the failure to maintain, individually or in the
aggregate, will not have a Material Adverse Effect; comply in all material
respects with all Contractual Obligations and Requirements of Law; maintain at
all times its status as a regulated investment company registered under the 1940
Act; and comply with all requirements of the Code applicable to regulated
investment companies, so as to be relieved of federal income tax on net
investment income and net capital gains distributed by it.
(e) Maintenance of Insurance. The Borrower shall keep all property
used and useful and necessary in its business, if any, in good working order and
condition; maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least such
risks as are usually insured against in the same general area by entities
engaged in the same or similar business or as may otherwise be required by the
Securities and Exchange Commission or any successor or analogous Governmental
Authority (including, without limitation, (i) fidelity bond coverage as shall be
required by Rule 17g-1 promulgated under the 1940 Act or any successor provision
and (ii) errors and omissions insurance); and furnish to the Agent, upon written
request, full information as to the insurance carried.
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(f) Inspection of Property; Books and Records; Discussions. The
Borrower shall keep proper books of records and account in which full, true and
correct entries in conformity with U.S. GAAP and all Requirements of Law shall
be made of all dealings and transactions in relation to its business and
activities; and (except to the extent the Borrower is prohibited from allowing
any such inspection pursuant to a written confidentiality agreement or is
otherwise prohibited pursuant to industry standards) permit representatives of
the Agent, upon prior notice to the Borrower, to visit and inspect any of its
properties and examine and make abstracts from any of its books and records at
any reasonable time and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Borrower with officers and employees of the Borrower and with its independent
certified public accountants; provided, however, that, in the absence of any
Default or Event of Default, the Agent will be permitted to make no more than
one such inspection in any calendar year.
(g) Notices. The Borrower shall promptly give notice to the Agent and
the Lender of:
(i) any Responsible Officer of the Borrower becoming aware of
the occurrence of any Default or Event of Default;
(ii) any (x) default or event of default under any Contractual
Obligation of the Borrower or (y) litigation, investigation or
proceeding which may exist at any time between the Borrower or any of
its Subsidiaries and any Governmental Authority, which in either case,
would reasonably be expected to have a Material Adverse Effect;
(iii) any litigation or proceeding affecting the Borrower which
would reasonably be expected to have a Material Adverse Effect;
(iv) any material investigation or proceedings undertaken or
instituted by any Governmental Authority with respect to the Borrower
or its Subsidiaries;
(v) any material written communication with respect to the
Borrower made to or received from any Governmental Authority involved
with the regulation of securities matters;
(vi) those time periods in which 20% or more of the assets of
the Borrower constitute "margin stock" as defined in Regulation U;
(vii) material changes in the Borrower's Registration Statement;
and
(viii) a development or event which, in the judgment of the
Borrower, could reasonably be expected to have a Material Adverse
Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.
(h) Purpose of Advances. The Borrower shall use the proceeds of the
Advances solely to finance the purchase and holding of portfolio assets of the
Borrower consisting of
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Permissible Investments or other lawful corporate purpose in the usual and
normal course of the Borrower's business. Without limiting the foregoing, the
Borrower will not, directly or indirectly, use any part of such proceeds for any
purpose which would violate any provision of its Prospectus or the Registration
Statement of the Borrower or any applicable statute, regulation, order or
restrictions, including, without limitation, Regulations T, U and X and the
Borrower shall not purchase securities in connection with the hostile
acquisition of the issuer of such securities.
(i) Compliance with Requirements of Law & Regulatory Authorities. The
Borrower shall comply in all material respects with all applicable Requirements
of Law, including, without limitation, Regulations T, U and X, other applicable
regulations of the Board of Governors of the Federal Reserve System, and, so
long as registered, all rules and regulations of the New York Stock Exchange.
(j) Payment of Taxes. The Borrower will pay and discharge all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties would otherwise attach thereto, and all lawful claims which, if
unpaid, might become a lien or charge upon any properties of the Borrower not
otherwise permitted under this Agreement; provided that the Borrower shall not
be required to pay any such tax, assessment, charge, levy or claim which is
being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with generally accepted
accounting principles.
(k) Maintenance of Registration Statement. The Borrower will maintain
the effectiveness of the Registration Statement under all applicable
Requirements of Law.
(l) Delivery; Further Assurances. The Borrower shall, at its expense:
(i) execute and deliver any and all instruments necessary or as the
Agent may reasonably request to grant and perfect a first priority Lien
on all of the Borrower Collateral; and
(ii) upon request of the Agent, forthwith execute and deliver or
cause to be executed by the Borrower and delivered to the Agent, in due
form for filing or recording (and pay the cost of filing or recording
the same in all public offices deemed necessary by the Agent), such
security agreements, pledge agreements, consents, waivers, financing
statements, stock or bond powers, and other documents, and do such
other acts and things, all as the Agent may from time to time
reasonably request, to establish and maintain to the reasonable
satisfaction of the Agent valid perfected Liens of the first priority
in all the Borrower Collateral (free of all other Liens, claims, and
rights of third parties whatsoever, except for Permitted Liens).
(n) ERISA. The Borrower covenants and agrees that neither the
Borrower nor any Subsidiary of the Borrower nor any ERISA Affiliate will
maintain or contribute to (or have an obligation to contribute to) a Plan.
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Section 5.02 Negative Covenants. Until the later of the
Commitment Termination Date and the date on which no Advances shall be
outstanding and all Obligations of the Borrower shall be repaid in full, the
Borrower agrees to the following, from and after the Closing Date:
(a) Financial Condition Covenants. The Borrower shall not permit (i)
the Asset Coverage Ratio of the Borrower (with all borrowings under this
Agreement deemed to be Senior Securities under the ▇▇▇▇ ▇▇▇) to be less than (x)
300% for more than four consecutive Business Days or (y) 275% at any time, or
(ii) allow borrowings of the Borrower to exceed the limits set forth in the
Borrower's Prospectus, the Statement of Additional Information, the Registration
Statement or the 1940 Act.
(b) Limitation on Indebtedness; Derivatives; and Guarantee Obligations.
(i) The Borrower shall not create, incur, assume or suffer to
exist any Indebtedness except Indebtedness of the Borrower incurred (1) under
this Agreement and the Note, (2) in the ordinary course of business of the
Borrower so long as such Indebtedness is not for borrowed money and is in
compliance with the terms of the Borrower's Investment Policies and the 1940
Act, (3) for temporary purposes, in an amount not exceeding five percent (5%) of
the Borrower's Total Assets at the time any such Indebtedness is incurred or (4)
in the form of reverse repurchase transactions, short sales of securities,
securities loans or other transactions entered into primarily for investment
purposes which have, or may be deemed to have, the effect of borrowing, and, in
each case, which is (x) not otherwise prohibited by law or in contravention of
the Borrower's Prospectus, the Statement of Additional Information or
Registration Statement, (y) in the ordinary course of business of the Borrower
and (z) appropriately reflected in the calculation of Asset Coverage Ratio;
provided, however, that in no event shall the Borrower be permitted to incur
Indebtedness (other than under this Agreement) which either (x) is secured by,
or encumbers (except for monies in a segregated account in connection with
hedging arrangements), assets of the Borrower, or (y) by its terms is senior or
prior in payment to the Advances or the other Obligations.
(ii) The Borrower shall not invest in, or incur Indebtedness or
other liability to any Person with respect to, any 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: (x) such derivative instrument is marked-to-market on a daily
basis; (y) for purposes of the calculation of Asset Coverage Ratio, such
derivative instrument is valued at its fair market value as of the date of such
calculation, and any liability thereunder on a marked-to-market basis is
subtracted as a liability, and (z) the purpose of the investment in such
derivative instrument is to augment capital appreciation or current income of
the Borrower or for hedging purposes and is otherwise in compliance with the
Borrower's Prospectus, the Statement of Additional Information, the Registration
Statement and the 1940 Act.
(iii) The Borrower shall not create, incur, assume or suffer
to exist any Guarantee Obligations of the Borrower in an aggregate amount
outstanding at any one time of more than $2,000,000.
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(c) Limitation on Liens. The Borrower shall not create, incur, assume
or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, except for Permitted Liens.
(d) Limitations on Fundamental Changes; Subsidiaries. The Borrower
shall not enter into any merger, consolidation or amalgamation, or liquidate,
wind up or dissolve the Borrower (or suffer any liquidation or dissolution), or
convey, sell, lease, assign, transfer or otherwise dispose of all, or
substantially all, of the property, business or assets of the Borrower in a
single transaction or in related transactions and shall not engage in any
business activity except as an investment company. The Borrower shall not
establish any Subsidiaries without the prior written consent of the Lender.
(e) Limitation on Distributions. The Borrower shall not, during the
occurrence and continuation of an Event of Default, or if a distribution would
(with the giving of notice or passage of time or both) cause the occurrence of
an Event of Default, make or effect (by means of purchase of capital stock or
otherwise) any distribution to the shareholders of the Borrower (including,
without limitation, any dividend or coupon payment or other distribution to any
holders of preferred stock of the Borrower), whether now or hereafter existing,
either directly or indirectly, whether in cash or property or in obligations of
the Borrower; provided, that distributions may be made to the extent that such
distributions are required to (i) enable the Borrower to continue to qualify as
a "regulated investment company" under Sections 851-855 of the Code and (ii)
prevent the Borrower from incurring any federal income or excise taxes as a
"regulated investment company" under Subchapter M of the Code.
(f) Limitation on Investments, Loans and Advances. The Borrower shall
not 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 the Borrower's Fundamental Investment
Policies and other Permissible Investments.
(g) Limitation on Transactions with Affiliates. The Borrower shall not
enter into any transaction, including, without limitation, any purchase, sale,
lease or exchange of property or the rendering of any service, with any
Affiliate unless such transaction is not otherwise prohibited under this
Agreement and such transaction is not in violation of the 1940 Act, including,
without limitation, Section 17 thereof.
(h) Limitation on Negative Pledge Clauses. The Borrower shall not enter
into with any Person any agreement, other than this Agreement or the other
Facility Documents, which prohibits or limits the ability of the Borrower to
create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owed or hereafter acquired.
(i) Limitation on Changes to Investment Policies. Except as may be
required by law, the Borrower shall not make any change to its Fundamental
Investment Policies without the consent of the Lender, which consent shall not
be unreasonably withheld or delayed.
(j) Change of Custodian. There will be no change of the Custodian for
Borrower
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unless any such successor custodian is a bank or trust company organized under
the laws of the United States or a political subdivision thereof having assets
of at least $10,000,000,000 and a long-term debt or deposit rating of at least
"A" from Fitch or "A2" from Moody's and, (x) after giving effect to such change,
no Default or Event of Default shall have occurred and be continuing and (y) the
Lender shall have received an opinion of counsel to the effect that after such
change, the Collateral Agent shall continue to have a first priority perfected
security interest in the Collateral.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events of Default. If any of the following
events (each, an "Event of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any Principal of any
Advance when due in accordance with the terms hereof, or the Borrower
shall fail to pay any Interest on any Advance, or any other expense,
fee or other amount payable hereunder or under any document entered in
connection herewith, within three Business Days after any such interest
or other amount becomes due in accordance with the terms thereof or
hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or in any other Facility Document to which it is a
party or which is contained in any certificate, document or financial
or other statement furnished by or on behalf of the Borrower at any
time under or in connection with this Agreement shall prove to have
been incorrect in any material respect on or as of the date made or
deemed made; or
(c) The Borrower shall default in the observance or
performance of any agreement contained in Section 5.02; or
(d) The Borrower shall default in the observance or
performance of any other agreement contained in this Agreement or the
Note (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of
five days in the case of any such default under Section 5.01(g)(i) or
thirty days in the case of any other such default; or
(e) The Borrower shall (i) default in (A) any payment of
principal or interest, regardless of the amount, due in respect of any
single Indebtedness (other than the Note) and/or derivative instrument
(including, without limitation any swap, collar, cap, puts, calls,
equity, derivative or mortgage-backed or debt-backed derivative) issued
under a single indenture or other agreement, of $2,000,000 or greater,
(B) any payment of principal or interest, regardless of amount, due in
respect of Indebtedness and/or derivative instrument (including without
limitation any swap, collar, cap, puts, calls, equity, derivative or
backed or debt-backed derivative) of any individual amount but which in
the aggregate exceeds $2,000,000 or (C) the payment of any Guarantee
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Obligation with respect to an amount of $2,000,000 or greater, beyond
the period of grace, if any, provided in the instrument or agreement
under which such Indebtedness or Guarantee Obligation was created; or
(ii) default in the observance or performance of any other agreement or
condition, beyond the period of grace, relating to any such
Indebtedness and/or derivative instrument (including without limitation
any swap, collar, cap, puts, calls, equity derivative or
mortgage-backed or debt-backed derivative) 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 and/or derivative
instrument (including without limitation any swap, collar, cap, puts,
calls, equity derivative or mortgage-backed or debt-back derivative) or
beneficiary or beneficiaries of such Guarantee Obligation (or a trustee
or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such
Guarantee Obligation to become payable; or
(f) (i) The Borrower shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to
it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or any
substantial part of its assets, or the Borrower shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against the 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 or (B)
remains undismissed, undischarged, unstayed or unbonded for a period of
sixty days; or (iii) there shall be commenced against the Borrower 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 sixty days from the entry
thereof; or (iv) the Borrower shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in any of
the acts set forth in clause (i), (ii), or (iii) above; or (v) the
Borrower shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(g) One or more judgments or decrees shall be entered against
the Borrower involving in the aggregate a liability of $2,000,000 or
more in excess of any applicable insurance coverage and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within thirty days from the entry thereof; or
(h) Without the prior written consent of the Required
Liquidity Lenders, which consent shall not be unreasonably withheld,
Nuveen or a Person directly controlling, controlled by, or under common
control with Nuveen shall no longer act as
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investment manager for or advisor to the Borrower; or
(i) The Borrower's registration under the 1940 Act shall lapse
or be suspended; or
(j) The Borrower shall fail to comply with the 1940 Act in a
manner which could reasonably be expected to have a Material Adverse
Effect; or
(k) The Borrower shall fail to comply in all material respects
with its Fundamental Investment Policies; or
(l) The Security Agreement or the Control Agreement shall
cease to be in full force and effect, or the enforceability of either
thereof shall be contested by the Borrower, or the Lien on the
Collateral in favor of the Collateral Agent shall at any time cease to
be a valid and perfected first-priority Lien, subject only to Permitted
Liens;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of subsection (f) above with respect to the Borrower,
automatically the Commitment to the Borrower shall immediately terminate and the
Advances made to the Borrower hereunder (with accrued interest thereon and, with
respect to Commercial Paper, with interest accrued and to accrue through the
maturity date) and all other amounts owing by the Borrower under this Agreement
and the Note shall immediately and automatically become due and payable, and (B)
if such event is any other Event of Default, either or all of the following
actions may be taken: (i) the Agent may, or upon the request of the Required
Liquidity Lenders, the Agent shall, by notice to the Borrower declare the
Commitment to the Borrower to be terminated forthwith, whereupon such Commitment
shall immediately terminate; (ii) the Agent may, or upon the request of the
Required Liquidity Lenders, the Agent shall, by notice of default to the
Borrower, declare the Advances hereunder made (with accrued interest thereon and
with respect to Commercial Paper, with interest accrued and to accrue through
maturity date) and all other amounts owing by the Borrower under this Agreement
and the Note of the Borrower to be due and payable forthwith, whereupon the same
shall immediately become due and payable; and (iii) the Agent may, or upon the
request of the Required Liquidity Lenders, the Agent shall, exercise any and all
rights or other remedies available to the Lender at law or in equity, including
without limitation, any rights and remedies available under the 1940 Act. Except
as expressly provided above in this Article, presentment, demand, protest,
notice of intent to accelerate, notice of acceleration and all other notices of
any kind are hereby expressly waived.
ARTICLE VII
THE AGENT
Section 7.01 Appointment. The Lender hereby irrevocably
designates and appoints the Agent to take such action on its behalf under the
provisions of this Agreement, the Note and the Facility Documents and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement, the Note and the other Facility
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35
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere or in this Agreement,
the Agent shall not have any duties or responsibilities, except those expressly
set forth herein, or any fiduciary relationship with the Lender or the Liquidity
Lenders, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Facility Document or otherwise exist against the Agent in such capacity.
Section 7.02 Delegation of Duties. The Agent may execute any
of its duties under this Agreement or any other Facility 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 Agent shall not be
responsible to the Lender for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
Section 7.03 Exculpatory Provisions. None of the Agent-Related
Persons shall be (i) liable to the Lender or the Liquidity Lenders 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 Facility Document (except for it or
such Person's own gross negligence or willful misconduct) or (ii) responsible in
any manner to the Lender or the Liquidity Lenders for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained in this Agreement or any other Facility Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Facility Document or for the value, validity, effectiveness (other than
its own due execution), genuineness, enforceability or sufficiency of this
Agreement or the Note or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Agent-Related Persons shall be under no
obligation to the Lender or the Liquidity Lenders 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 Facility Document, or to inspect the
properties, books or records of the Borrower.
Section 7.04 Reliance by Agent. The Agent shall be entitled to
rely, and shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, or telecopy message, statement, order or other document or
conversation believed in good faith by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by such Agent. The
Agent may deem and treat the payee of the Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other
Facility Document unless it shall first receive such advice from the Lender or
the Required Liquidity Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lender or the Liquidity 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 Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
and the Note in accordance with a request of the Lender or the Required
Liquidity Lenders, and such request and any action taken or failure to act
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pursuant thereto shall be binding upon the Lender, the Liquidity Lenders and all
future holders of the Note.
Section 7.05 Notice of Default. The Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from the Lender, the Liquidity
Lenders or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". The
Agent will notify the Lender and the Liquidity Lenders as soon as is reasonably
practicable of its receipt of any such notice. The Agent shall take such action,
with respect to such Default or Event of Default as shall be reasonably directed
by the Lender or the Required Liquidity Lenders; provided, that unless and until
the Agent shall have received such direction, the 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
interest of the Lender.
Section 7.06 Credit Decisions. The Lender expressly
acknowledges that none of the Agent-Related Persons has made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to the Lender. The Lender
represents to the Agent that it has, independently and without reliance upon the
Agent, 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 Borrower and
made its own decision to make its Advances hereunder and enter into this
Agreement. The Lender also represents that it will, independently and without
reliance upon the Agent, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the Note, 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 Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lender by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide the
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower which may come into the possession of the Agent or any of its
Agent-Related Persons.
Section 7.07 Agent in its Individual Capacity. The Agent and
its Agent-Related Persons may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower as though the Agent and its
Agent-Related Persons were not an Agent hereunder and under the Note. With
respect to the Advances made or renewed by the Agent and the Note issued to the
Agent, the Agent shall have the same rights and powers under this Agreement and
the Note as the Lender and may exercise the same as though it were not an Agent
and the term "Lender" shall include the Agent in its individual capacity.
Section 7.08 Successor Agent. The Agent may resign its
capacity as an Agent upon thirty days' notice to the Lender and the appointment
of a successor Agent. If the Agent shall resign as an Agent under this Agreement
and the Note, then the Lender shall appoint a
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successor agent for the Lender, which successor agent shall be approved by the
Borrower. If no successor Agent shall have been so appointed within thirty days
of the retiring Agent's giving of notice of resignation, then such retiring
Agent may appoint a successor Agent which shall be a commercial bank organized
under the laws of the United States of America or any State thereof and having a
combined capital and surplus of at least $100 million. Any successor agent shall
succeed to the rights, powers and duties of such retiring Agent and the term
"Agent" shall mean such successor agent effective upon its appointment, and the
former Agent's rights, powers and duties as Agent shall be terminated, without
any other or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any holder of the Note. After the retiring Agent's
resignation as an Agent, the provisions of this subsection shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was an
Agent under this Agreement and the Note.
ARTICLE VIII
INDEMNIFICATION
Section 8.01 Indemnities by the Borrower. Without limiting any
other rights which the Lender, the Agent, the Liquidity Agent, the Liquidity
Lenders, the Collateral Agent, the Depositary, the Dealer or any Affiliate of
any thereof, as well as their respective directors, officers, employees and
agents (each, an "Indemnified Party") may have hereunder or under applicable
law, the Borrower hereby agrees to indemnify each Indemnified Party from and
against any and all claims, losses and liabilities (including reasonable
attorneys' fees), other than any present or future income, capital, franchise or
similar taxes, now or hereafter imposed, levied, collected, withheld or assessed
(all of the foregoing non-excluded items being collectively referred to as
"Indemnified Amounts"), arising out of or resulting from (but excluding, in any
event, Indemnified Amounts to the extent resulting from gross negligence,
willful misconduct or bad faith on the part of such Indemnified Party):
(i) reliance on any representation or warranty or statement
made or deemed made by the Borrower (or any of its officers) under or
in connection with any Facility Document to which the Borrower is a
party which shall have been incorrect in any material respect when
made;
(ii) the execution, delivery, performance, and enforcement of
this Agreement;
(iii) any failure of the Borrower to perform its duties or
obligations in accordance with the provisions of this Agreement or the
Security Agreement;
(iv) any investigation, litigation or proceeding related to
this Agreement, the Borrower or the use of proceeds of Advances or in
respect of the Borrower Collateral;
(v) the use by the Borrower of the proceeds of the Advances;
(vi) the failure by the Borrower or any of its agents to
comply with any
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Requirement of Law with respect to the Borrower Collateral;
(vii) the failure at any time to vest in the Collateral Agent
under the Security Agreement a perfected, first-priority security
interest in the Borrower Collateral, except as otherwise permitted by
this Agreement; or
(viii) the failure to have filed, or any delay in filing,
financing statements or other similar instruments or documents under
the UCC of any applicable jurisdiction or other applicable laws with
respect to the Borrower Collateral, whether at the time of any Advance
or at any subsequent time.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Amendments, Etc. No amendment or waiver of any
provision of any Facility Document, and no consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Lender and the Agent, and then such amendment, waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
Section 9.02 Notices, Etc. All notices and other
communications provided for hereunder shall, unless otherwise stated herein, be
in writing (including telecopier) and mailed, telecopied, delivered by
nationally recognized overnight courier or hand delivered, if to the Borrower,
the Lender or the Agent, at its address set forth under its name on the
signature pages hereof, or at such other address as shall be designated by such
Person to each other party hereto in a written notice. All such notices and
communications shall, when mailed or delivered, be effective three days after
the date deposited in the mails, delivered to the courier or hand delivered,
respectively, and, when telecopied, be effective upon receipt of confirmation
that telecopy has been received, except that notices and communications to the
Agent or the Lender pursuant to Article II shall not be effective in any case
until received by such Person.
Section 9.03 No Waiver; Cumulative Remedies. No failure on the
part of the Agent or the Lender to exercise, and no delay in exercising, any
right under any Facility Document shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 9.04 Binding Effect; Assignability. This Agreement
shall become effective when it shall have been executed by the Borrower, the
Lender and the Agent. From and after the date this Agreement shall have so
become effective, this Agreement shall be binding upon and inure to the benefit
of the Borrower, the Lender and the Agent and their respective successors and
assigns; provided that the Borrower shall not be permitted to assign its rights
hereunder or interest herein to any Person without the consent of the Agent and
the Lender.
Section 9.05 Governing Law. This Agreement and the Note shall
be governed
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by, and construed in accordance with, the laws of the State of New York.
Section 9.06 Costs and Expenses. (a) Whether or not the
transactions contemplated hereby are consummated, in addition to the rights of
indemnification granted to the Indemnified Parties under Article VIII hereof,
the Borrower agrees to pay on demand all reasonable costs and expenses in
connection with the preparation, execution, delivery, modification, amendment,
administration and monitoring of the Facility Documents and the other documents
to be delivered thereunder (including the costs in respect of the perfection and
maintenance of the security interests), including, without limitation, the
reasonable fees and expenses of counsel to the Lender and counsel to the Agent,
and of local counsel who may be retained by the Lender and the Agent, with
respect thereto and with respect to advising the Lender and the Agent as to
their respective rights and remedies under the Facility Documents. The Borrower
further agrees to pay on demand all costs and expenses of the Agent and Lender
(including, without limitation, the reasonable fees and expenses of counsel to
the Agent and of counsel to the Lender and of local counsel who may be retained
by the Agent and the Lender), in connection with the enforcement (whether
through negotiations, workout, legal proceedings or otherwise) of, or
preservation of rights under, the Facility Documents and the other documents to
be delivered thereunder, including, without limitation, reasonable counsel fees
and expenses in connection with the enforcement of rights under this Section
9.06(a).
(b) In addition, whether or not the transactions contemplated
hereby are consummated, Borrower shall pay on demand all other reasonable costs
and expenses incurred by the Lender pursuant to the Facility Documents,
including, without limitation, the cost of rating the Lender's commercial paper
by independent financial rating agencies, the costs of the Lender's auditors
auditing the Borrower's books, records and procedures, the cost of auditing the
Lender's books, the fees, costs and expenses of and indemnities to the
Depositary, the Collateral Agent, the Administrator, the Dealer and the
Liquidity Lenders (including all fees, costs, expenses and indemnities payable
to the Liquidity Lenders under Sections 3.08, 3.09, 3.10, 3.11 or 10.04 of the
Liquidity Agreement) and the reasonable fees and expenses of counsel for the
Lender and the Agent with respect to advising the Lender and the Agent as to
matters relating to the Lender's operations.
Section 9.07 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement.
Section 9.08 Waiver of Jury Trial. THE BORROWER, THE LENDER
AND THE AGENT EACH AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope
of this waiver is intended to be all-encompassing of any and all disputes that
may be filed in any court and that relate to the subject matter of this
transaction, including without limitation, contract claims, tort claims, breach
of duty claims, and all other common law and statutory claims. The Borrower, the
Lender and the Agent each acknowledges that this waiver is a material inducement
for such party to enter into a business relationship, that the Borrower, the
Lender and the Agent have already relied on the waiver in entering into this
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Agreement and that each will continue to rely on the waiver in their related
future dealings. The Borrower, the Lender and the Agent further warrant and
represent that each has reviewed this waiver with its legal counsel, and that
each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
In the event of litigation, this Agreement may be filed as a written consent to
a trial by the court.
Section 9.09 Jurisdiction; Consent to Service of Process. (a)
The Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the non-exclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City; and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Facility Documents, or for recognition
of enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State or, to
the extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Lender or the Agent may otherwise have to bring any action or
proceeding relating to this Agreement or the other Facility Documents against
the Borrower or its properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the other
Facility Documents in any New York State or Federal court sitting in New York
City. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
Section 9.10 No Proceedings. The Borrower hereby covenants and
agrees that, prior to the date which is one year and one day after the payment
in full of all outstanding Commercial Paper, it will not institute against, or
join any other Person in instituting against, the Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States.
Section 9.11 Survival. The Borrower's obligations pursuant to
Sections 2.10, 2.11, 2.12, 8.01, 9.01, 9.06 and 9.10 shall survive the repayment
of the Advances and the termination of the Commitment.
Section 9.12 Entire Agreement. This Agreement, together with
the other Facility Documents, constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
Section 9.13 Severability of Provisions. In case any provision
of this Agreement
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shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 9.14 Confidentiality. Each of the Agent and the Lender
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its, its Affiliates', the
Liquidity Banks' and the Liquidity Banks' Affiliates' directors, officers,
employees and agents, including without limitation accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and will
have agreed to keep such Information confidential), (b) to the extent required
by any legal or regulatory authority, (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (d) to any
other party to this Agreement and to the Dealer(s), (e) 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; provided, however, that
such Information may only be disclosed to the extent necessary and material to
the prosecution or defense of such suit, action or proceeding for the
enforcement of rights hereunder, (f) subject to an agreement containing
provisions substantially the same as those of this subsection, to any assignee
of or participant in, or any prospective assignee of or participant in, any of
its rights under this Agreement or the Liquidity Agreement, (g) with the consent
of the Borrower, (h) to the extent such Information becomes (i) publicly
available other than as a result of a breach of this Section 9.14, or (ii)
becomes available to the Agent, the Lender or any Liquidity Lender on a
non-confidential basis from a source other than the Borrower, the Agent, the
Lender or any Liquidity Lender. For purposes of this Section, "Information"
means all information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to any Agent or the
Lender on a non-confidential basis prior to disclosure by the Borrower.
Section 9.15 Disclaimer. None of the shareholders, trustees,
officers, employees and other agents of the Borrower shall be personally bound
by or liable for any indebtedness, liability or obligation hereunder or under
the Note, nor shall resort be had to their personal property for the
satisfaction of any obligation or claim hereunder or in connection with any
Facility Document.
Section 9.16 Covenants of the Lender. The Lender covenants to the
Borrower that, until the later of the Commitment Termination Date and the date
on which no Advances shall be outstanding and all Obligations of the Borrower
shall be paid in full:
(i) the Lender shall not engage in any business or activity
other than entering into the Facility Documents to which it is a party and
performing any actions incidental thereto or required by such Facility
Documents;
(ii) so long as no Event of Default occurs and is continuing
under this Agreement, the Lender shall not, without the prior consent of the
Borrower, consent to any amendment or waive any of the terms of the Liquidity
Agreement or terminate any Liquidity Commitments thereunder; and
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(iii) the Lender shall promptly forward to the Borrower copies
of all notices it receives from the Liquidity Lenders pursuant to the Liquidity
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
NUVEEN SENIOR INCOME FUND,
as Borrower
By
Name:
Title:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
[SPV],
as Lender
By
Name:
Title:
-----------------------
-----------------------
-----------------------
Attention:
--------------------
Telephone No.:
----------------
Fax No.:
----------------------
With a copy to:
GLOBAL SECURITIZATION SERVICES, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
--------------------
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
at the address set forth below
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
By
Name:
Title:
By
Name:
Title:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
44
45
Schedule I
LIST OF REGISTRAR, TRANSFER AGENCY AND SERVICES AGREEMENT(S)
46
Schedule II
Page 46
LIST OF INVESTMENT ADVISORY AGREEMENT(S)
1. Management Agreement, dated October 19, 1999, between Nuveen Senior Income
Fund and Nuveen Senior Loan Asset Management Inc.
47
Schedule IV
Page 47
LIST OF CUSTODIAN CONTRACT(S)
1. Custody and Fund Accounting Services Agreement, dated October 26, 1999,
between each fund or series of a fund listed on Schedule D to the above
agreement and Chase Bank of Texas, National Association.
48
EXHIBIT A
Page 48
FORM OF PROMISSORY NOTE
U.S. $150,000,000 Dated: , 2000
FOR VALUE RECEIVED, the undersigned, NUVEEN SENIOR INCOME FUND, a
Massachusetts business trust (the "Borrower"), hereby promises to pay to the
order of [SPV], a Delaware limited liability company (the "Lender"), for the
Lender's account the amount first stated above or, if less, the aggregate unpaid
principal amount of all Advances (as defined below) made by the Lender to the
Borrower pursuant to the Credit Agreement (as defined below) on the Commitment
Termination Date (as defined in the Credit Agreement). All capitalized terms
used but not defined herein shall have the meanings set forth in the Credit
Agreement.
The Borrower promises to pay interest on the unpaid principal amount of
the Advances from the date of the initial Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Deutsche Bank AG, New York Branch, as Agent, at ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: [▇▇▇▇▇ ▇▇▇▇▇▇▇] in
immediately available funds.
This Note is the Note referred to in, and is entitled to the benefits
of, the Credit Agreement dated as of , 2000 (the "Credit Agreement";
the terms defined therein and not otherwise defined herein are being used herein
as therein defined) among the Borrower, the Lender and Deutsche Bank AG, New
York Branch, as Agent for the Lender. The Credit Agreement, among other things,
(i) provides for the making of Advances (the "Advances") by the Lender to the
Borrower in an amount not to exceed the U.S. dollar amount first above
mentioned, the indebtedness of the Borrower resulting from such Advances being
evidenced by this Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events (including, without
limitation, the failure of the Borrower to pay when due the obligations of the
Borrower) and also for prepayments of principal of the Advances prior to the
maturity hereof upon the terms and conditions therein specified. Without
limitation of the foregoing, payment of the obligations of the Borrower
hereunder and under the Credit Agreement are secured by the collateral described
in, and are entitled to the ratable benefit of, the Security Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The terms of this Note are subject to amendment only in the manner
provided in the Credit Agreement.
The Borrower promises to pay all costs and expenses, including
reasonable attorney's fees, all as provided in subsection 9.06 of the Credit
Agreement, incurred in the collection and enforcement of this Note. The Borrower
and endorsers of this Note consent to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waive
49
EXHIBIT A
Page 49
diligence, presentment, protest, demand and notice of every kind.
NUVEEN SENIOR INCOME FUND
By
Name:
Title:
50
EXHIBIT B
FORM OF SECURITY AGREEMENT
51
EXHIBIT C
FORM OF CONTROL AGREEMENT
52
Exhibit D
Page 52
FORM OF BORROWER COMPLIANCE CERTIFICATE
To: Deutsche Bank AG, New York Branch,
as Agent under the Credit Agreement
referred to below.
Reference is hereby made to the Credit Agreement (as in effect on the
date of this certificate, the "Credit Agreement"), dated as of ,
2000, by and among Nuveen Senior Income Fund, as Borrower, [SPV], as Lender and
Deutsche Bank AG, New York Branch, as Agent. Capitalized terms used herein and
not defined herein shall have the meanings provided therefor in the Credit
Agreement.
Pursuant to Section [5.01(a)(i)][5.01(a)(ii)][5.01(a)(iii)][5.01(b)(iii)]of
the Credit Agreement, we are delivering to you on the date hereof our [annual]
[semi-annual] [monthly] [financial statements] [semi-annual report] for the
fiscal [year] [six month period] [month] ended , (such period,
the "Fiscal Period").
As required by Section 5.01(b)(i) of the Credit Agreement, the
undersigned, as a Responsible Officer of the Borrower, hereby certifies that to
the best of such Responsible Officer's knowledge:
1. As of the date hereof, [no Default or Event of Default has occurred or
is continuing] [the following Default or Event of Default exists and set forth
below with respect to each such Default a description of the details thereof and
what action the Borrower proposes to take in respect thereof.]
2. During the Fiscal Period, the Borrower has observed or performed all of
its covenants and other agreements, and satisfied every other condition
contained in the Credit Agreement and the other Facility Documents to be
observed, performed or satisfied by it.
[ADD ADDITIONAL INFORMATION AS TO DEFAULTS, IF ANY]
53
EXHIBIT D
PAGE 53
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed as of the day of , .
NUVEEN SENIOR INCOME FUND
By:
-----------------------------------
Name:
Title:
54
Exhibit E
FORM OF BORROWING REQUEST
Deutsche Bank AG,
New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
----------------
Re: Nuveen Senior Income Fund
Ladies and Gentlemen:
This Borrowing Request is delivered to you pursuant to Section 2.02 of the
Credit Agreement, dated as of , 2000 (together with all amendments,
if any, from time to time made thereto, the "Credit Agreement"), among NUVEEN
SENIOR INCOME FUND, a Massachusetts business trust (the "Borrower"), [SPV], a
Delaware limited liability company (the "Lender") and Deutsche Bank AG, New York
Branch (the "Agent"). All capitalized terms used but not defined herein shall
have the meanings set forth in the Credit Agreement.
Pursuant to Section 2.02 of the Credit Agreement, the undersigned hereby
gives you irrevocable notice that the undersigned hereby requests an Advance
under the Credit Agreement, and in that connection sets forth below the
information relating to such Advance (the "Proposed Advance") as required by
Section 2.02 of the Credit Agreement:
(i) The aggregate principal amount of the Proposed Advance is
$ .(1)
(ii) The Business Day of the Proposed Advance is [Date].(2) A written
or telephonic request for an Advance shall be received by the Agent no later
than (x) 10:00 a.m. (New York City time) on the Business Day of the Proposed
Advance or (y) in the case of the initial Advance, no later than 11:30 a.m. (New
York City time) on the second Business Day preceding the date of such Advance.
------------------
(1) The desired amount must be at least $5,000,000 and must be in integral
multiples of $1,000,000.
(2) A written or telephonic request for an Advance shall be received by the
Agent no later than (x) 10:00 a.m. (New York City time) on the Business
Day of the Proposed Advance or (y) in the case of the initial Advance, no
later than 11:30 a.m. (New York City time) on the second Business Day
preceding the date of such Advance.
55
EXHIBIT E
Page 55
2
(iii) The Interest Period for the Proposed Advance is .
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Advance:
A. the representations and warranties contained in Article IV of the
Credit Agreement and in the Facility Documents are and will be true and correct
in all material respects, both before and after giving effect to the Proposed
Advance and to the application of the proceeds thereof, as though made on such
date, unless stated to relate to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date;
B. no Default or Event of Default has occurred and is continuing, or
would result from such Proposed Advance or from the application of the proceeds
thereof; and
C. after giving effect to the Advance, the Asset Coverage Ratio for
all borrowings of the Borrower shall not be less than 300% and the 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 limit set forth in the Prospectus, the Registration Statement, the
Statement of Additional Information or the 1940 Act, as the case may be.
The undersigned hereby acknowledges that, pursuant to Section 2.02 of
the Credit Agreement, each of the delivery of this Borrowing Request and the
acceptance by the undersigned of the proceeds of the Advances requested hereby
constitute a representation and warranty by the undersigned that, on the date of
such Advance, and before and after giving effect thereto and to the application
of the proceeds therefrom, all applicable conditions contained in Article III of
the Credit Agreement shall, both before and after giving effect to the Proposed
Advance, have been satisfied.
The undersigned agrees that if, prior to the time of the Proposed
Advance, any matter certified to herein by it will not be true and correct at
such time as if then made, it will immediately so notify the Agent. Unless the
Agent shall have received written notice to the contrary from the undersigned
prior to the time of the Proposed Advance, each matter certified to herein shall
be deemed once again to be certified as true and correct at the date of the
Proposed Advance as if then made.
NUVEEN SENIOR INCOME FUND
By:
---------------------------
Name:
Title:
56
Exhibit E
Page 56
57
EXHIBIT f
FORM OF OPINION OF COUNSEL TO BORROWER
58
Exhibit J
Page 58
COPY OF CUSTODIAN CONTRACT
59
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS..........................................................................2
Section 1.01 Certain Defined Terms........................................................................2
Section 1.02 Other Terms.................................................................................11
Section 1.03 Computation of Time Periods.................................................................11
Section 1.04 Accounting Terms............................................................................11
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES........................................................................12
Section 2.01 Commitment..................................................................................12
Section 2.02 Making the Advances.........................................................................12
Section 2.03 Termination or Reduction of the Commitment Amount...........................................12
Section 2.04 Prepayments.................................................................................13
Section 2.05 Payment of Interest.........................................................................13
Section 2.06 Repayment on Commitment Termination Date....................................................13
Section 2.07 Fees........................................................................................14
Section 2.08 Payments and Computations, Etc..............................................................14
Section 2.09 Evidence of Advances........................................................................14
Section 2.10 Requirements of Law.........................................................................15
Section 2.11 Indemnity...................................................................................16
Section 2.12 Net Payments; Taxes.........................................................................16
Section 2.13 Use of Proceeds.............................................................................17
Section 2.14 Order of Payments by Lender.................................................................17
Section 2.15 Extension of Commitment Termination Date....................................................17
ARTICLE III
CONDITIONS OF LENDING....................................................................................18
Section 3.01 Conditions to Execution.....................................................................18
Section 3.02 Conditions to Each Advance..................................................................19
ARTICLE IV
REPRESENTATIONS AND WARRANTIES...........................................................................21
Section 4.01 Representations and Warranties of the Borrower..............................................21
ARTICLE V
60
Page
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COVENANTS OF THE BORROWER................................................................................24
Section 5.01 Affirmative Covenants.......................................................................24
Section 5.02 Negative Covenants..........................................................................29
ARTICLE VI
EVENTS OF DEFAULT........................................................................................31
Section 6.01 Events of Default...........................................................................31
ARTICLE VII
THE AGENT................................................................................................33
Section 7.01 Appointment.................................................................................33
Section 7.02 Delegation of Duties........................................................................34
Section 7.03 Exculpatory Provisions......................................................................34
Section 7.04 Reliance by Agent...........................................................................34
Section 7.05 Notice of Default...........................................................................35
Section 7.06 Credit Decisions............................................................................35
Section 7.07 Agent in its Individual Capacity............................................................35
Section 7.08 Successor Agent.............................................................................35
ARTICLE VIII
INDEMNIFICATION..........................................................................................36
Section 8.01 Indemnities by the Borrower.................................................................36
ARTICLE IX
MISCELLANEOUS............................................................................................37
Section 9.01 Amendments, Etc.............................................................................37
Section 9.02 Notices, Etc................................................................................37
Section 9.03 No Waiver; Cumulative Remedies..............................................................37
Section 9.04 Binding Effect; Assignability...............................................................37
Section 9.05 Governing Law...............................................................................37
Section 9.06 Costs and Expenses..........................................................................38
Section 9.07 Execution in Counterparts...................................................................38
Section 9.08 Waiver of Jury Trial........................................................................38
Section 9.09 Jurisdiction; Consent to Service of Process.................................................39
Section 9.10 No Proceedings..............................................................................39
Section 9.11 Survival....................................................................................39
Section 9.12 Entire Agreement............................................................................39
Section 9.13 Severability of Provisions..................................................................39
Section 9.14 Confidentiality.............................................................................40
61
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Section 9.15 Disclaimer .................................................................................40
SCHEDULES AND EXHIBITS
Schedule I List of Registrar, Transfer Agency and Services Agreement(s)
Schedule II List of Investment Advisory Agreement(s)
Schedule III List of Custodian Contract(s)
Exhibit A Form of Promissory Note
Exhibit B Form of Security Agreement
Exhibit C Form of Control Agreement
Exhibit D Form of Borrower Compliance Certificate
Exhibit E Form of Borrowing Request
Exhibit F Form of Opinion of Counsel to Borrower
Exhibit G Copy of Custodian Contract