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EXHIBIT K.6
$150,000,000
CREDIT AGREEMENT
Dated as of December 14, 1999
among
NUVEEN SENIOR INCOME FUND,
as Borrower,
THE LENDERS PARTIES HERETO,
as Lenders,
and
DEUTSCHE BANK AG, NEW YORK BRANCH
as Agent, Syndication Agent and Arranger
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS .................................. 1
Section 1.01 Certain Defined Terms ................................ 1
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 LOANS ................................... 11
Section 2.01 Revolving Credit Commitments ......................... 11
Section 2.02 Revolving Notes ...................................... 12
Section 2.03 Procedure for Facility Borrowing ..................... 12
Section 2.04 Termination or, Reduction of Commitments ............. 13
Section 2.05 Optional and Mandatory Prepayments ................... 13
Section 2.06 Conversion and Captions .............................. 14
Section 2.07 Minimum Amounts of Tranches .......................... 14
Section 2.08 Interest Rates and Payment Dates ..................... 15
Section 2.09 Computation of Interest and Fees ..................... 15
Section 2.10 Inability to Determine Interest Rate ................. 15
Section 2.11 Pro Rata Treatment and Payments ...................... 16
Section 2.12 Illegality ........................................... 16
Section 2.13 Use of Proceeds ...................................... 16
Section 2.14 Requirements of Law .................................. 16
Section 2.15 Indemnity ............................................ 18
Section 2.16 Commitment Fee ....................................... 18
Section 2.17 Taxes ................................................ 18
ARTICLE III CONDITIONS OF LENDING ........................................... 20
Section 3.01 Conditions to Execution .............................. 20
Section 3.02 Conditions to Each Loan .............................. 21
ARTICLE IV REPRESENTATIONS AND WARRANTIES ................................... 22
Section 4.01 Representations and Warranties of the Borrower ....... 22
ARTICLE V COVENANTS OF THE BORROWER ......................................... 26
Section 5.01 Affirmative Covenants ................................ 26
Section 5.02 Negative Covenants ................................... 30
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ARTICLE VI EVENTS OF DEFAULT ................................................ 32
Section 6.01 Events of Default .................................... 32
ARTICLE VII THE AGENT ...................................................... 35
Section 7.01 Appointment .......................................... 35
Section 7.02 Delegation of Duties ................................. 35
Section 7.03 Exculpatory Provisions ............................... 35
Section 7.04 Reliance by Agent .................................... 36
Section 7.05 Notice of Default .................................... 36
Section 7.06 Credit Decisions ..................................... 36
Section 7.07 Indemnification ...................................... 37
Section 7.08 Agent in its Individual Capacity ..................... 37
Section 7.09 Successor Agent ...................................... 37
ARTICLE VIII INDEMNIFICATION ............................................... 38
Section 8.01 Indemnities by the Borrower .......................... 38
ARTICLE IX MISCELLANEOUS ................................................... 38
Section 9.02 Notices, Etc ......................................... 39
Section 9.03 No Waiver; Cumulative Remedies ....................... 39
Section 9.04 Binding Effect; Successors and Assigns; Participations 39
Section 9.05 Governing Law ........................................ 42
Section 9.06 Costs and Expenses ................................... 42
Section 9.07 Execution in Counterparts ............................ 43
Section 9.08 Waiver of Jury Trial ................................. 43
Section 9.09 Jurisdiction; Consent to Service of Process .......... 43
Section 9.10 Adjustments; Set-off ................................. 43
Section 9.11 Survival ............................................. 44
Section 9.12 Entire Agreement ..................................... 44
Section 9.13 Severability of Provisions ........................... 44
Section 9.14 Confidentiality ...................................... 44
Section 9.15 Disclaimer ........................................... 45
EXHIBITS AND SCHEDULES
Exhibit A Form of Revolving Note
Exhibit B Form of Borrower Certificate
Exhibit C Form of Borrowing Request
Exhibit D Form of Assignment Agreement
Exhibit E Form of Opinion of Counsel to the Borrower
Schedule I Commitments
Schedule II List of Investment Advisory Agreement(s)
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Schedule III List of Custodian Contract(s)
Schedule IV List of Registrar, Transfer Agency and Services Agreement(s)
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CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of December 14, 1999 (this
"Agreement"), is among NUVEEN SENIOR INCOME FUND, a Massachusetts business trust
(the "Borrower"), the banks and other financial institutions from time to time
parties to this Agreement (collectively, the "Lenders"; each a "Lender"), and
DEUTSCHE BANK AG, NEW YORK BRANCH, as administrative agent (in such capacity,
the "Agent"), syndication agent and arranger.
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 a credit facility for the
purposes of funding its business activities; and
WHEREAS, the Lenders are willing, on the terms and conditions
hereinafter set forth, to make available to the Borrower the credit facilities
provided for herein;
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 terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"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 7.09, together with their respective Affiliates and
the officers, directors, employees, agents, attorneys-in-fact of such
Persons and Affiliates.
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"Applicable Margin" means, for any day with respect to each Eurodollar
Loan, fifty (50) basis points.
"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.
"Assignment Agreement" has the meaning specified in Section 9.04(c).
"Available Commitment" means, as to any Lender at any time, an amount
equal to the excess, if any, of (a) the amount of such Lender's Commitment
over (b) the aggregate principal amount of all Loans made by such Lender
then outstanding.
"Bankruptcy Code" means Title 11 of the United States Code, as in
effect from time to time, and any successor statute.
"Base Rate" means for any day, the rate per annum equal to the higher
of (a) the Federal Funds Rate for such day plus one-half of one percent
(.50%), and (b) the Prime Rate for such day. Any change in the Base Rate
due to a change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate or Federal
Funds Rate.
"Base Rate Loans" means Loans made at a rate of interest based upon
the Base Rate.
"Borrower" has the meaning specified in the preamble hereto.
"Borrowing Date" means any Business Day specified in a notice pursuant
to Sections 2.03 or 2.06 as a date on which the Borrower requests the
Lenders to make Loans.
"Borrowing Request" means each request by the Borrower for the Lenders
to make Revolving Loans, which shall contain the information in respect of
such Revolving Loans specified in Exhibit C and shall be delivered to the
Agent in writing or by facsimile transmission, as provided in Section 2.03.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in the State of Illinois or the State of New
York are authorized or required to be closed.
"Closing Date" means the date on which each of the conditions set
forth in Section 3.01 shall have been satisfied.
"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
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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.
"Commitment" means, as to any Lender, the commitment of such Lender to
make Loans to the Borrower from time to time in accordance with the terms
of this Agreement, in an aggregate principal amount at any one time
outstanding not to exceed the amount of the "Commitment" set forth opposite
such Lender's name on Schedule I.
"Commitment Amount" means $150,000,000 as such amount may from time to
time be reduced pursuant to Section 2.04; provided, however, that at all
times on and after the Termination Date, the Commitment Amount shall be
zero.
"Commitment Fee" has the meaning specified in Section 2.16.
"Commitment Percentage" means, as to any Lender at any time, the
percentage of the aggregate Commitments then constituted by such Lender's
Commitment.
"Commitment Period" means the period from and including the Closing
Date to but excluding December 12, 2000 or such earlier date as the
Commitments shall terminate as provided herein.
"Commonly Controlled Entity" means, an entity, whether or not
incorporated, which is under common control, with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of the
Code.
"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 such Person is a party or by which it or any of its
property is bound.
"Custodian" shall have the meaning specified in the Custodian
Contract.
"Custodian Contract" means the Custodian Contract(s) set forth in
Schedule III hereto.
"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.
"Dollars" means the legal currency, at any relevant time hereunder, of
the United States of America.
"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.
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"Eurocurrency Reserve Requirements" means for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day, including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for
Eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board) maintained by a member bank of such System
or bank subject to such Governmental Authority.
"Eurodollar Base Rate" means with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, (a) the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
rate that appears with respect to such Interest Period on the Telerate Page
3750 (or such other page as may replace said page) as of 11:00 A.M., London
time, two Working Days prior to the beginning of such Interest Period. If
for any reason such rate is not available, the term "Eurodollar Base Rate"
means, for any Eurodollar Loan for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits
in Dollars at approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period; provided, however, if more than one rate is specified
on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic
mean of all such rates (rounded upwards, if necessary, to the nearest 1/100
of 1%).
"Eurodollar Loans" means Loans made at a rate of interest based upon
the Eurodollar Base Rate.
"Eurodollar Rate" means with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
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1.00 - Eurocurrency Reserve Requirements
"Event of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business
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Day, the Federal Funds Rate for such day shall be the average rate charged
to the Agent (in its individual capacity) on such day on such transactions
as determined by the Agent.
"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.
"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 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
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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.
"Insolvency" means, with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Interest Payment Date" means (a) as to any Base Rate Loan, the first
Business Day of each calendar month to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, and (c) as to
any Eurodollar Loan having an Interest Period longer than three months, the
day which is three months after the first day of such Interest Period and
the last day of such Interest Period and, in each case, the day on which a
Loan becomes due and is payable in full and is paid or prepaid in full.
"Interest Period" means with respect to any Eurodollar Loans:
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loans and ending
one, two, three or six months thereafter, as selected by the Borrower in
its notice of borrowing as provided in Section 2.03 or its notice of
conversion as provided in Section 2.06(a) as the case may be; provided that
the Agent and Lenders may consider requests by the Borrower to provide an
initial Interest Period of less than one month; and
(b) thereafter, each period commencing on the last day of the
immediately preceding Interest Period applicable to such Eurodollar Loans
and ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Agent not less than three Working
Days prior to the last day of the then current Interest Period with respect
to such Eurodollar Loans;
provided that all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period would otherwise end on a day which is
not a Working Day, such Interest Period shall be extended to the next
succeeding Working Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event
such Interest Period shall end on the immediately preceding Working
Day;
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(2) any Interest Period that begins on the last Working Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Working Day of a calendar month;
(3) any Interest Period that would otherwise end after the
Termination Date shall end on the Termination Date; and
(4) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"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.
"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" or "Lenders" has the meaning specified in the preamble
hereto.
"Lending Office" has the meaning specified in Section 2.01(b).
"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).
"Loan Documents" means this Agreement, the Notes and any other
documents entered into in connection herewith.
"Loans" means the collective reference to the extensions of credit by
the Lenders to the Borrower under Article II.
"Majority Lenders" means, at any time, Lenders the Commitment
Percentages of which aggregate 51% or more. If the Commitments are
terminated Majority Lenders shall mean Lenders holding 51% or more of the
outstanding Loans.
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"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) 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 Notes, or (c) the validity or enforceability of a material
provision of this Agreement, the Notes or the material rights or remedies
of the Agent or the Lender hereunder or thereunder.
"Maturity Date" shall mean the earlier of (i) the Termination Date or
(ii) acceleration following the occurrence of an Event of Default pursuant
to Section 6.01.
"Multiemployer Plan" means a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"1940 Act" means the Investment Company Act of 1940, as amended,
together with all rules and regulations promulgated from time to time
thereunder.
"Notes" means the Revolving Notes, evidencing the aggregate
obligations of the Borrower to the Lenders resulting from the Loans made by
the Lenders.
"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
Loans 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
Loans 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 Notes, any other Loan 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 or to the Lenders that are
required to be paid by the Borrower pursuant to the terms of this
Agreement) or otherwise.
"Participant" has the meaning set forth in Section 9.04(b).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"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 and (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 and secure Indebtedness in an aggregate amount not to
exceed $250,000.
"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, at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate" means the per annum rate of interest established from
time to time by Deutsche Bank AG, New York Branch as its prime rate, which
rate may not be the lowest rate of interest charged by Deutsche Bank AG,
New York Branch to its customers.
"Prospectus" means the Prospectus of the Borrower, dated October 26,
1999.
"Purchasing Lender" has the meaning set forth in Section 9.04(c).
"Register" has the meaning specified in Section 9.04(d).
"Registrar, Transfer Agency and Services Agreement" means the
Registrar, Transfer Agency and Services Agreement(s) set forth in Schedule
IV 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.
"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.
"Reorganization" means, with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
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"Replacement Lender" has the meaning specified in Section 2.18.
"Reportable Event" means an event described in Section 4043(b) of
ERISA with respect to a Plan as to which the thirty-day notice requirement
has not been waived by the PBGC.
"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, (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" has the meaning specified in Section 2.01(a).
"Revolving Note" has the meaning specified in Section 2.02.
"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.
"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
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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 2.17(a).
"Termination Date" means December 12, 2000.
"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.
"Tranche" means the collective reference to Eurodollar Loans, the
Interest Periods of which begin on the same day and end on the same later
date (whether or not such Eurodollar Loans shall originally have been made
on the same day).
"Transferee" has the meaning specified in Section 9.04(f).
"Type" means as to any Revolving Loan, its nature as a Base Rate Loan
or a Eurodollar Loan.
"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.
"Working Day" means any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in the city where
the Eurodollar and foreign currency and exchange operations in respect of
the Agent's Eurodollar Loans are then being conducted.
"Year 2000 Compliant" has the meaning specified in Section 4.01(s).
"Year 2000 Problem" has the meaning specified in Section 4.01(s).
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
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"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 LOANS
Section 2.01 Revolving Credit Commitments. (a) On the terms and
conditions hereinafter set forth, each Lender hereby agrees to make Revolving
Loans (each, a "Revolving Loan") to the Borrower from time to time during the
Commitment Period in an aggregate principal amount not to exceed the amount of
such Lender's Commitment; provided that the aggregate principal amount of all
Revolving Loans outstanding at any one time shall not exceed the Commitment
Amount at such time. During the Commitment Period, the Borrower may use the
Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) The Revolving Loans may from time to time be (i) Eurodollar Loans,
(ii) Base Rate Loans or (iii) a combination thereof, as determined by the
Borrower and notified to the Agent in accordance with Sections 2.03 and 2.06,
provided that no Revolving Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Termination Date. Each Lender may make or
maintain its Revolving Loans to the Borrower by or through any branch, or with
the consent of the Borrower (which shall not be unreasonably withheld) any
affiliate, in each case as determined by it from time to time and notified to
the Agent (any such branch or affiliate being hereinafter called a "Lending
Office").
Section 2.02 Revolving Notes. The Revolving Loans made by each Lender
to the Borrower shall be evidenced by a promissory note of the Borrower,
substantially in the form of Exhibit A, with appropriate insertions as to payee,
date and principal amount (each a "Revolving Note"), in each case payable to the
order of such Lender and in a principal amount equal to the lesser of (a) the
amount of such Lender's Commitment and (b) the aggregate unpaid principal amount
of all Revolving Loans made by the Lender to the Borrower, as the case may be.
Each Lender is hereby authorized to record the date, type and amount of each
Revolving Loan made by such Lender to the Borrower, each continuation thereof,
each conversion of all or a portion thereof to another Type, the date and amount
of each payment or prepayment of principal thereof and, in the case of
Eurodollar Loans, the length of each Interest Period with respect thereto, on
the schedule annexed to and constituting a part of its Revolving Note made by
the Borrower or otherwise in the books and records of such Lender, and any such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded; provided, however that the failure to make any such
recordation shall not affect the obligations of the Borrower hereunder or under
any Revolving Note. Each Revolving Note shall (x) be dated the Closing Date, (y)
be stated to mature on the Termination Date and (z) provide for the payment of
interest in accordance with Section 2.08.
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Section 2.03 Procedure for Facility Borrowing. The Borrower may borrow
under the Commitments during the Commitment Period on any Working Day if the
borrowing is a Eurodollar Loan or on any Business Day if the borrowing is a Base
Rate Loan, provided that the Borrower shall give the Agent irrevocable notice in
the form of a Borrowing Request (which notice must be received by the Agent
prior to 12:00 P.M., New York City time, (a) three Working Days prior to the
requested Borrowing Date, if all or any part of any such requested Revolving
Loans are to be initially Eurodollar Loans or (b) one Business Day prior to the
requested Borrowing Date in all other cases), specifying the aggregate amount
thereof to be borrowed and the aggregate amount of Revolving Loans outstanding
after giving effect to such borrowing, the requested Borrowing Date, whether
such borrowing is to be of Eurodollar Loans, Base Rate Loans or a combination
thereof and if such borrowing is to be entirely or partly of Eurodollar Loans,
the amounts of such Type of Loan and the lengths of the initial Interest Periods
therefor. Each borrowing under the Commitments shall be in an amount equal to
(x) in the case of Base Rate Loans, $5,000,000 or a whole multiple of $1,000,000
in excess thereof (or, if the then unused portion of the applicable Commitments
is less than $5,000,000, such lesser amount) and (y) in the case of Eurodollar
Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon
receipt of any Borrowing Request from the Borrower, the Agent shall promptly
notify each Lender thereof. Thereafter, each Lender will make the amount of its
pro rata share of each borrowing available to the Agent for the account of the
Borrower at the office of the Agent specified in Section 9.02 prior to 1:00
P.M., New York City time, on the Borrowing Date requested by the Borrower in
funds immediately available to the Agent. Such amount will then be made
available to the Borrower by the Agent, crediting the account of the Borrower on
the books of such office with such amount made available to the Agent by the
Lenders for the Borrower and in like funds as received by the Agent. Unless the
Agent shall have received notice from a Lender prior to the Borrowing Date that
such Lender will not make available to the Agent its pro rata share of such
borrowing, the Agent may assume that such Lender has made its funds available to
the Agent on such date in accordance with this Section 2.03, and the Agent may,
in reliance upon such assumption, make available to the Borrower on such
Borrowing Date a corresponding amount. If and to the extent such Lender shall
not have so made such funds available to the Agent, such Lender agrees to repay
the Agent forthwith on demand by the Agent such corresponding amount, together
with interest thereon, for each day from date such amount is made available to
the Borrower until the date such amount is repaid to the Agent, at the greater
of the Federal Funds Rate and the rate determined by the Agent in accordance
with banking industry rules on interbank compensation. If such Lender shall
repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Lender's funding of its pro rata share of such borrowing for
purposes of this Agreement. The Borrower shall reimburse the Agent for all of
such corresponding amount that remains unpaid to the Agent after the fifth
Business Day following the date such amount is made available to the Borrower.
Section 2.04 Termination or, Reduction of Commitments. (a) The Borrower
may, upon at least five Business Days' written notice to the Agent, terminate
the Commitments or from time to time reduce the amount of any thereof (in whole
or in part); provided that no such reduction or termination shall be permitted
if, after giving effect thereto and to any prepayment of the Revolving Loans
made on the effective date specified therein, the then outstanding principal
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amount of Revolving Loans would exceed the aggregate amount of the Commitments
as so reduced.
(b) In the case of the termination or reduction of all or any of the
Commitments pursuant to this Section 2.04, interest accrued 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.
Section 2.05 Optional and Mandatory Prepayments. (a) Subject to Section
2.15, the Borrower may, at any time and from time to time, prepay the Revolving
Loans, in whole or in part, upon at least three Working Days' irrevocable notice
(in the case of Eurodollar Loans) and one Business Day's irrevocable notice (in
the case of Base Rate Loans) from the Borrower to the Agent specifying the date
and amount of prepayment and whether the prepayment is of Eurodollar Loans, Base
Rate Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of any such notice from the Borrower, the
Agent shall promptly notify the Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable by the Borrower on the
date specified therein, together with accrued interest to such date on the
amount prepaid and any amounts payable pursuant to Section 2.15 in connection
with such prepayment. Partial prepayments shall be in an aggregate principal
amount of $1,000,000 or a whole multiple thereof and may only be made, if after
giving effect thereto, Section 2.07 shall not have been contravened.
(b) 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 Loans 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
Loans made to the Borrower to the extent necessary to ensure that (x) the Asset
Coverage Ratio of the Borrower after such payment is less than 300% or (y) the
aggregate amount of Loans 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 Registration Statement, as the case may be.
(c) Notwithstanding anything to the contrary in this Agreement, on the
Termination Date all Revolving Loans outstanding shall mature and be payable in
full, and the Commitments of the Lenders shall be reduced to zero.
Section 2.06 Conversion and Continuations. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to Base Rate Loans, by giving the
Agent at least three Business Days' prior irrevocable notice of such election,
provided that any such conversion of Eurodollar Loans may only be made on the
last day of an Interest Period with respect thereto. The Borrower may elect from
time to time, provided no Default or Event of Default shall have occurred and be
continuing, to convert Base Rate Loans to Eurodollar Loans by giving the Agent
at least three Working Days' prior irrevocable notice of such election. Any such
notice of conversion to Eurodollar Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of any such notice
the Agent shall promptly notify each Lender thereof. All or any part of
outstanding Eurodollar Loans and Base Rate Loans may be converted
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as provided herein, provided that (i) any such conversion may only be made if,
after giving effect thereto, Section 2.07 shall not have been contravened and
(ii) no Base Rate Loan may be converted into a Eurodollar Loan after the date
that is one month prior to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
notice to the Agent, in accordance with the applicable provisions of the
definition of "Interest Period' set forth in Section 1.01, of the length of the
next Interest Period to be applicable to such Eurodollar Loans, provided that no
Eurodollar Loan may be continued as such (i) if, after giving effect thereto,
Section 2.07 would be contravened or (ii) after the date that is one month prior
to the Termination Date and provided, further, that if the Borrower shall fail
to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Revolving
Loans shall be automatically converted to Base Rate Loans on the last day of
such then expiring Interest Period.
Section 2.07 Minimum Amounts of Tranches. All borrowings, conversions
and continuations of Revolving Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Revolving Loans comprising each Tranche shall be equal to $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. There shall be no more than
seven Tranches outstanding at any one time.
Section 2.08 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum equal
to the Base Rate.
(c) If all or a portion of the principal amount of any Loan or any
interest payable on the Loans shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum which is (x) in the case of overdue principal to the last
day of any Interest Period then applicable thereto, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (y) otherwise, the rate described in paragraph (b) of this
Section 2.08 plus 2%, in each case from the date of such nonpayment until such
amount is paid in full (as well after as before judgment).
(d) Interest on each Eurodollar Loan and Base Rate Loan shall be
payable in arrears on each Interest Payment Date, provided that interest
accruing pursuant to paragraph (c) of this Section 2.08 shall be payable on
demand.
Section 2.09 Computation of Interest and Fees. (a) Interest on Base
Rate Loans shall be calculated on the basis of a 365 or 366-day year, as
applicable, for the actual days elapsed. Interest on Eurodollar Loans and the
Commitment Fee payable pursuant to Section 2.16 shall be calculated on the basis
of a 360-day year for the actual days elapsed. The Agent shall as
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soon as practicable notify the Borrower and the Lenders of each determination of
a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change in the
Base Rate becomes effective or such change in the Eurocurrency Reserve
Requirements becomes effective, as the case may be. The Agent shall as soon as
practicable notify the Borrower and each Lender of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error. The Agent shall, at the request of
the Borrower, deliver to the Borrower a statement showing the quotations used by
the Agent in determining any interest rate pursuant to Section 2.08(a) and the
calculations made by the Agent in determining any interest rate pursuant to
Section 2.08(b).
Section 2.10 Inability to Determine Interest Rate. In the event that
prior to the first day of any Interest Period the Agent shall have determined
(which determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such Interest
Period, (x) any Eurodollar Loan requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (y) any Base Rate Loans that
were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be converted to or continued as Base Rate Loans and (z)
any outstanding Eurodollar Loans shall be converted, on the first day of such
Interest Period, to Base Rate Loans. Until such determination has been withdrawn
by the Agent, no further Eurodollar Loans shall be made or continued as such,
nor shall the Borrower have the right to convert Base Rate Loans to Eurodollar
Loans.
Section 2.11 Pro Rata Treatment and Payments. Each borrowing of
Revolving Loans by the Borrower from the Lenders hereunder, each payment by the
Borrower of any Commitment Fee hereunder, and any reduction of the applicable
Commitments of the Lenders shall be made pro rata according to the respective
applicable Commitment Percentages of the Lenders. Each payment (including each
prepayment) by the Borrower on account of principal of and interest on the
Revolving Loans shall be made pro rata according to the respective outstanding
principal amounts of the Revolving Loans then held by the Lenders. All payments
(including prepayments) to be made by the Borrower hereunder and under the
Notes, whether on account of principal, interest, fees or otherwise, shall be
made without set off or counterclaim and shall be made prior to 12:00 Noon, New
York City time, on the due date thereof to the Agent, for the account of the
appropriate Lenders, at the Agent's office specified in Section 9.02, in Dollars
and in immediately available funds. The Agent shall distribute such payments to
such Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a Eurodollar Loan becomes due and payable on a day other than a
Working Day, the maturity thereof shall be extended to the next succeeding
Working Day unless the result of such
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extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Working Day.
Section 2.12 Illegality. Notwithstanding any other provision herein, if
any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Lender or Lending Office to make or
maintain Eurodollar Loans as contemplated by this Agreement, (a) the commitment
of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert Base Rate Loans to Eurodollar Loans shall forthwith be
suspended until such time as the circumstances giving rise to such suspension
are no longer applicable and (b) the Loans of such Lender or Lending Office then
outstanding as Eurodollar Loans, if any, shall be converted automatically to
Base Rate Loans on the respective last days of the then current Interest Periods
with respect to such Loans or within such earlier period as required by law. If
any such conversion of a Eurodollar Loan occurs on a day which is not the last
day of the then current Interest Period with respect thereto, the Borrower shall
pay to the Lender such amounts, if any, as may be required pursuant to Section
2.15.
Section 2.13 Use of Proceeds. The proceeds of the Loans shall be used
by the Borrower to make Permissible Investments.
Section 2.14 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 any Lender 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 complied with by lenders of the same general type as such 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, any
office of such Lender or Lending Office which is not otherwise included in
the determination of the Eurodollar Rate hereunder, or
(ii) shall impose on such Lender or Lending Office any other condition;
and the result of any of the foregoing is to increase the cost to the Lender or
Lending Office, by an amount which the Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans or to reduce any
amount receivable hereunder in respect thereof then, in any such case, the
Borrower shall promptly pay such Lender or Lending Office, upon its demand, any
additional amounts necessary to compensate the Lender for such increased cost or
reduced amount receivable. If any 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 such Lender or Lending Office, 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 Notes and all other amounts payable hereunder for one year.
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(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
any Lender or any corporation controlling any Lender and such Lender (taking
into consideration such Lender's or such corporation's policies with respect to
capital adequacy) determines that the amount of capital maintained by such
Lender or such corporation which is attributable to or based upon the Loans, the
Commitments or this Agreement must be increased as a consequence of such
introduction or change, then, upon demand of the Agent at the request of such
Lender, the Borrower shall immediately pay to the Agent on behalf of such
Lender, additional amounts sufficient to compensate such Lender or such
corporation for the increased costs to such Lender or such corporation of such
increased capital. Any such demand shall be accompanied by a certificate of such
Lender setting forth in reasonable detail the computation of any such increased
costs, provided that such Lender shall not be required to disclose confidential
information. This covenant shall survive the termination of this Agreement and
the payment of the Notes and all other amounts payable hereunder for one year.
(c) Each Lender will promptly notify the Borrower, through the Agent,
of any event of which it has knowledge that will entitle such Lender to
compensation pursuant to Section 2.14(a) or (b) above. No failure by any Lender
to give (or delay in giving) such notice shall adversely affect such Lender's
rights to such compensation, except that the Borrower shall have no obligation
to compensate any Lender for any cost or reduction incurred or accrued by it
more than 180 days before such 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 such 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 2.14(a) or (b)).
Section 2.15 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such 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 Loan, (b) default by the
Borrower in making a borrowing or conversion into or continuation of Loans 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 Loans) of Eurodollar Loans 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 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 Notes and all other amounts payable hereunder
for one year.
Section 2.16 Commitment Fee. In connection with and as consideration
for the holding available for use by Borrower the full amount of the Commitments
during the
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Commitment Period the Borrower agrees to pay to the Agent for the account of
each Lender a commitment fee (the "Commitment Fee") equal to the product of (x)
0.125% per annum multiplied by (y) the average daily amount of the Available
Commitment of such Lender during the calendar quarter for which the Commitment
Fee is being paid (or, in the case of the initial payment of the Commitment Fee,
during the period from the Closing Date to March 31, 2000). Such Commitment Fee
shall be payable quarterly in arrears on the last day of each March, June,
September and December, commencing March 31, 2000, and on the Termination Date.
Section 2.17 Net Payments; Taxes. (d) All payments made by the Borrower
hereunder, or by the Borrower under any Notes, will be made without setoff,
counterclaim or other defense. Except as provided in Section 2.17(b), all such
payments will be made free and clear of, and without deduction or withholding
for, any present or future taxes, levies, imposts, duties, fees, assessments or
other charges of whatever nature now or hereafter imposed by any Governmental
Authority or by any political subdivision or taxing authority thereof or therein
with respect to such payments (but excluding, except as provided in the second
succeeding sentence, any tax imposed on or measured by the net income of a
Lender pursuant to the laws of the jurisdiction or any political subdivision or
taxing authority thereof or therein in which the principal office or applicable
lending office of such Lender is located) and all interest, penalties or similar
liabilities with respect thereto (collectively, "Taxes"). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and
such additional amounts as may be necessary so that every payment of all amounts
due hereunder or under any Note, after withholding or deduction for or on
account of any Taxes, will not be less than the amount provided for herein or in
such Note. If any amounts are payable in respect of Taxes pursuant to the
preceding sentence, then the Borrower shall be obligated to reimburse each
Lender, upon the written request of such Lender, for taxes imposed on or
measured by the net income of such Lender pursuant to the laws of the
Governmental Authority or any political subdivision or taxing authority thereof
or therein in which the principal office or applicable lending office of such
Lender is located as such Lender shall determine are payable by such Lender in
respect of such amounts so paid to or on behalf of such Lender pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Lender pursuant to this sentence. The Borrower will furnish to the Agent within
45 days after the date of the payment of any Taxes due pursuant to applicable
law certified copies of tax receipts evidencing such payment by such Borrower.
The Borrower agrees to indemnify and hold harmless each Lender, and reimburse
such Lender upon its written request, for the amount of any Taxes so levied or
imposed and paid by such Lender.
(e) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower
and the Agent on or prior to the Effective Date, or in the case of a Lender that
is an assignee or transferee of an interest under this Agreement pursuant to
Section 9.04 (unless the respective Lender was already a Lender hereunder
immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Lender, (i) two accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with
respect to a complete exemption under an income tax treaty) (or successor forms)
certifying to such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments to be made under this Agreement
and under any Note, or (ii) if the Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or
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Form W-8BEN (with respect to a complete exemption under an income tax treaty)
pursuant to clause (i) above, (x) a certificate substantially in the form of
Exhibit D (any such certificate, a "Section 2.17(b)(ii) Certificate") and (y)
two accurate and complete original signed copies of Internal Revenue Service
Form W-8BEN (with respect to the portfolio interest exemption) (or successor
form) certifying to such Lender's entitlement to a complete exemption from
United States withholding tax with respect to payments of interest to be made
under this Agreement and under any Note. In addition, each Lender agrees that
from time to time after the Closing Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to the Borrower and the Agent two new accurate
and complete original signed copies of Internal Revenue Service Form W-8ECI,
Form W-8BEN (with respect to the benefits of any income tax treaty), Form W-8BEN
(with respect to the portfolio interest exemption) and a Section 2.17(b)(ii)
Certificate, as the case may be, and such other forms as may be required in
order to confirm or establish the entitlement of such Lender to a continued
exemption from or reduction in United States withholding tax with respect to
payments under this Agreement and any Note, or it shall immediately notify the
Borrower and the Agent of its inability to deliver any such Form or Certificate,
in which case such Lender shall not be required to deliver any such form of
certificate pursuant to this Section 2.17(b). Notwithstanding anything to the
contrary contained in Section 2.17(a), but subject to the immediately succeeding
sentence, (x) the Borrower shall be entitled, to the extent it is required to do
so by law, to deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of any
Lender which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that
such Lender has not provided to the Borrower U.S. Internal Revenue Service Forms
that establish a complete exemption from such deduction or withholding and (y)
the Borrower shall not be obligated pursuant to Section 2.17(a) hereof to
gross-up payments to be made to a Lender in respect of income or similar taxes
imposed by the United States if (I) such Lender has not provided the Borrower
the Internal Revenue Service Forms required to be provided the Borrower pursuant
to this Section 2.17(b) or (II) in the case of a payment, other than interest,
to a Lender described in clause (ii) above, to the extent that such forms do not
establish a complete exemption from withholding of such taxes. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in
this Section 2.17, the Borrower agrees to pay additional amounts and to
indemnify each Lender in the manner set forth in Section 2.17(a) (without regard
to the identity of the jurisdiction requiring the deduction or withholding) in
respect of any amounts deducted or withheld by it as described in the
immediately preceding sentence as a result of any changes after the Effective
Date in any applicable law, treaty, governmental rule, regulation, guideline or
order, or in the interpretation thereof, relating to the deducting or
withholding of income or similar Taxes.
(c) 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 Loan Documents or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or the other Loan
Documents.
Section 2.18 Replacement of Lender. If any Lender shall have required
compensation pursuant to Section 2.14 or Section 2.17, the Borrower shall have
the right, with
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the consent of the Agent (which shall not be unreasonably withheld), to
substitute such Lender with a Lender (a "Replacement Lender") satisfactory to
the Borrower and the Agent (which may be one or more of the Lenders) to assume
the Commitment of such Lender and to purchase the Note(s) held by such Lender
for an amount equal to the principal of, and accrued and unpaid interest on,
such Note(s), together with any costs reasonably incurred by such Lender in
connection with its sale of such Note(s) (without recourse to or warranty by
such Lender and subject to all amounts owing to such Lender under this Agreement
having been paid in full). Upon the exercise of such right by the Borrower and
the satisfaction of such conditions thereto, such Lender shall convey its
interest to the Replacement Lender in accordance with the procedures set forth
in Section 9.04(c).
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) Incumbency Certificates. The Agent shall have received an
incumbency certificate of the Borrower, 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 Notes and any and all other documentation to be executed by
the Borrower in connection with this Agreement.
(c) Authorization Proceedings. The Agent shall have received a copy of
the resolutions of the board of 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 Notes 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.
(d) 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
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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 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).
(e) Legal Opinion. The Agent shall have received the executed legal
opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, and such legal opinion shall be substantially
in the form of Exhibit E.
(f) Notes. The Agent shall have received, for the account of each
Lender, the Notes conforming to the requirements of this Agreement and
executed by a Responsible Officer of the Borrower.
(g) 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.
(h) 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.
(i) Certain Information. The Agent shall have received the most recent
list of portfolio securities for the Borrower.
(j) 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.
(k) 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.
(l) 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.
(m) Further Assurances. The Agent shall have received such additional
documents as it may reasonably request.
Section 3.02 Conditions to Each Loan. The agreement of each Lender to
make any Loan requested to be made by it on any date is subject to the
satisfaction of the following conditions precedent:
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(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to the Loan Documents to
which it is a party shall be true and correct in all material respects on
and as of the date of any Loan as if made on and as of the date such Loan
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 Loan requested to
be made on such date.
(c) Maximum Borrowing Limitation. After giving effect to the proposed
Loan 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 Loan 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) Governmental Authority Limitation. There exists no order, judgment
or decree of any court or Governmental Authority or arbitrator which
enjoins or restrains such Lender from making Loans and no law, rule or
regulation applicable to such Lender and no request or directive (whether
or not having the force of law) from any court or Governmental Authority
with jurisdiction over such Lender, which prohibits such Lender, or
requires that such Lender refrain, from making Loans.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date of such Loan that the
conditions contained in this Section 3.02(a), (b) and (c) have been satisfied.
ARTICLE IV
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,
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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, there has been no material adverse
change in the business, condition (financial or otherwise), 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
Loan 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 Loan 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 Notes. This
Agreement has been, and each of the Notes will be, duly executed and
delivered by the Borrower. This Agreement constitutes, and each of the
Notes when 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 Notes, the borrowings hereunder and the use of the
proceeds thereof by the
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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 Notes 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 material tax returns,
statements, forms and reports required to be filed by or with respect to
the income, properties or operations of the Borrower and has paid all taxes
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 with respect to which reserves in
conformity with the U.S. GAAP have been provided on the books of the
Borrower). There is no material action, suit, proceeding, investigation,
audit, or claim now pending or, to the best knowledge of the Borrower,
threatened by any authority regarding any taxes relating to the Borrower.
As of the initial Borrowing Date, 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. The Borrower has
not provided, with respect to themselves or property held by them, any
consent under Section 341 of the Code. The Borrower has not incurred, or
will not incur, any material tax liability in connection with the
transactions contemplated hereby (it being understood that the
representation contained in this sentence does not cover any future tax
liabilities of the Borrower arising as a result of the operation of their
businesses in the ordinary course of business).
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(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 each 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) ERISA. Neither the Borrower nor any Commonly Controlled Entity has
currently or has had at any time any liability or obligation under ERISA or
the Code with respect to any Plan.
(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 Loans. The proceeds of the Loans 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.
(s) Year 2000. The Borrower has (i) initiated a review and assessment
of all areas within its business operations (including those affected by
suppliers, vendors, customers and service providers) that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Borrower (or suppliers, vendors and
service providers) may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date
after December 31, 1999), (ii) developed a plan and time line for
addressing the Year 2000 Problem on a timely basis,
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and (iii) to date, implemented that plan in accordance with that timetable.
Based on the foregoing, the Borrower believes that all computer
applications (including those of its suppliers, vendors and service
providers) that are material to its business and operations are reasonably
expected on a timely basis to be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that is, be "Year
2000 Compliant"), except to the extent that, in any such case, a failure to
do so would not reasonably be expected to have a Material Adverse Effect.
(t) Accuracy and Completeness of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of the Borrower
in writing to the Agent or any Lender for purposes of or in connection with
this Agreement or any transaction contemplated hereby (in each case, as
amended, superseded, supplemented or otherwise modified in good faith with
the knowledge of the Agent or such Lender) 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 or any
Lender (in each case, as amended, superseded, supplemented or otherwise
modified in good faith with the knowledge of the Agent or such Lender) 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 not misleading under
the circumstances on the date as of which such information is dated or
certified.
(u) 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 or any Lender.
(v) 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 Termination
Date and the date on which no Loans 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:
(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
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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
LLP or other independent certified public accountants of recognized
standing, all audited by KPMG 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 Loans
outstanding, the Borrower shall provide the Agent (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 Loans 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 each Lender:
(i) concurrently with the delivery of the financial statements referred
to in Section 5.01(a)(i), (ii) and (iii), a certificate of a Responsible
Officer, in substantially the form of Exhibit B 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 Loan 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;
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(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 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 securities 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
Agent may from time to time reasonably request, including, but not limited
to, copies of all changes to the Prospectus and Registration Statement.
(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 and preserve, renew and keep
in full force and effect its existence; 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
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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.
(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
permit representatives of the Agent, upon prior notice to the Borrower, to visit
and inspect any of its properties (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) 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 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 communication with respect to the Borrower made to
or received from any Governmental Authority involved with the regulation of
securities matters;
(vi) the following events, as soon as possible and in any event
within thirty days after a Responsible Officer of the Borrower obtains
knowledge thereof: (x) the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, or any withdrawal from, or the
termination, Reorganization or Insolvency of any Multiemployer Plan or (y)
the institution of proceedings or the making of any other action by the
PBGC or the Borrower or any Commonly Controlled Entity or any Multiemployer
Plan with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan;
(vii) those time periods in which 20% or more of the assets of the
Borrower constitute "margin stock" as defined in Regulation U;
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(viii) material changes in the Borrower's Registration Statement; and
(ix) 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 Loans. The Borrower shall use the proceeds of the Loans
solely to finance the purchase and holding of portfolio assets of the Borrower
consisting of 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 and 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) Year 2000 Compliance. The Borrower will promptly notify the Agent in
the event the Borrower discovers or determines that any computer application
(including those of its suppliers, vendors and service providers) that is
material to its or any of its Subsidiaries' business and operations will not be
Year 2000 Compliant, except to the extent that such failure could not reasonably
be expected to have a Material Adverse Effect.
Section 5.02 Negative Covenants. Until the later of the Termination
Date and the date on which no Loans 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:
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(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 Notes, (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 Loans 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.
(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.
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(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 Majority Lenders.
(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 Loan
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 Majority Lenders, which consent shall not be
unreasonably withheld or delayed.
(j) Change of Custodian. There will be no change of the Custodian for
Borrower 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 ▇▇▇▇▇ "▇▇" from ▇▇▇▇▇'▇ Investors Service and, after giving effect to such
change, no Default or Event of Default shall have occurred and be continuing.
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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 Loan when due
in accordance with the terms hereof, or the Borrower shall fail to pay any
interest on any Loan, 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 Loan 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 Notes (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 Notes) 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 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
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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) Either the Borrower or any Commonly Controlled Entity of the
Borrower incurs any liability to any Plan which could reasonably be
expected to have a Material Adverse Effect; or
(h) 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
(i) Without the prior written consent of the Majority 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 investment manager for or advisor to the Borrower; or
(j) The Borrower's registration under the 1940 Act shall lapse or be
suspended; or
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(k) The Borrower shall fail to comply with the 1940 Act in a manner
which could have a Material Adverse Effect; or
(l) The Borrower shall fail to comply in all material respects with
its Fundamental Investment Policies;
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 Commitments to the Borrower shall immediately terminate and
the Loans made to the Borrower hereunder (with accrued interest thereon and all
other amounts owing by the Borrower under this Agreement and the Notes 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 Majority Lenders, the Agent shall,
by notice to the Borrower declare the Commitments to the Borrower to be
terminated forthwith, whereupon such Commitments shall immediately terminate;
(ii) the Agent may, or upon the request of the Majority Lenders, the Agent
shall, by notice of default to the Borrower, declare the Loans hereunder made
(with accrued interest thereon and all other amounts owing by the Borrower under
this Agreement and the Notes 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 Majority Lenders, the Agent shall, exercise any
and all rights or other remedies available to the Lenders 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. Each Lender hereby irrevocably designates
and appoints the Agent to take such action on its behalf under the provisions of
this Agreement, the Notes and the Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement, the Notes and the other Loan 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 any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent in
such capacity.
Section 7.02 Delegation of Duties. The Agent may execute any of its
duties under this Agreement or any other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible to any
Lender for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
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Section 7.03 Exculpatory Provisions. None of the Agent-Related Persons
shall be (i) liable to any Lender for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for it or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any Lender for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness (other than its
own due execution), genuineness, enforceability or sufficiency of this Agreement
or the Notes or for any failure of the Borrower to perform its obligations
hereunder or thereunder. The Agent-Related Persons shall be under no obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of 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 Loan Document unless it
shall first receive such advice or concurrence of the Majority Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The 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 Majority Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon the 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 a Lender 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
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 Majority 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 Lenders.
Section 7.06 Credit Decisions. Each Lender expressly acknowledges that
none of the Agent-Related Persons has made any representations or warranties to
it and that no act by the
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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 such Lender. Each 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 Loans hereunder and enter into this Agreement. Each 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 Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide the Lenders 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 Indemnification. The Lenders agree to indemnify the Agent
in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
the respective amounts of their Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs (including, without limitation, the allocated cost of internal counsel),
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes)
be imposed on, incurred by or asserted against the Agent in any way relating to
or arising out of this Agreement, the Notes or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by such Agent or any of them under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of the Agent resulting solely from the Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the
Notes and all other amounts payable hereunder.
Section 7.08 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 Loans 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 Lenders 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 7.09 Successor Agent. The Agent may resign its capacity as an
Agent upon thirty days' notice to the Lenders and the appointment of a successor
Agent. If the Agent shall resign as an Agent under this Agreement and the Note,
then the Majority Lenders (with, unless an Even of Default shall have occurred
and be continuing, the prior written consent of the Borrower,
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which consent shall not be unreasonably withheld) shall appoint a successor
agent for the Lenders. 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 each Lender or the Agent 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, 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 Loan 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;
(iv) any investigation, litigation or proceeding related to this
Agreement, the Borrower or the use of proceeds of Loans; or
(v) the use by the Borrower of the proceeds of the Loans.
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ARTICLE IX
MISCELLANEOUS
Section 9.01 Amendments and Waivers. Neither this Agreement, any Note,
nor any terms hereof or thereof may be amended, supplemented or modified except
in accordance with the provisions of this subsection. With the written consent
of the Majority Lenders, the Agent and the Borrower may, from time to time,
enter into written amendments, supplements or modifications hereto and to the
Notes for the purpose of adding any provisions to this Agreement or the Notes or
changing in any manner the rights of the Lenders or the Borrower hereunder or
thereunder or waiving, on such terms and conditions as the Agent may specify in
such instrument, any of the requirements of this Agreement or the Notes or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (a) forgive
or reduce the amount or extend the maturity of any Note, or reduce the rate or
extend the time of payment of interest thereon, or forgive or reduce, or extend
the date of payment of, any fee payable to any Lender hereunder, or change the
amount of any Lender's Commitment, in each case without the written consent of
the Lender affected thereby, or (b) reduce the minimum Asset Coverage Ratio as
required by Section 5.02(a), or (c) amend, modify or waive any provision of this
subsection or reduce the percentage specified in the definition of Majority
Lenders, or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement and the Notes, in each case without
the written consent of all the Lenders, or amend, modify or waive any provision
of Section 7 without the written consent of the Agent. Any such waiver and any
such amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Borrower, the Lenders, the Agent and all
future holders of the Notes. In the case of any waiver, the Borrower, the
Lenders and the Agent shall be restored to their former position and rights
hereunder and under the outstanding Notes, and any Default or Event of Default
waived shall be deemed to be cured and not continuing, but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.
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 Lenders
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 when 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 Lenders 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 any Lender to exercise, and no delay in exercising, any right under
any Loan 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.
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Section 9.04 Binding Effect; Successors and Assigns; Participations.
(a) This Agreement shall become effective when it shall have been executed by
the Borrower, the Lenders 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 Lenders 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 prior
written consent of the Agent and each Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to such Lender, any Note held by such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the Notes. In
the event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Note for all purposes under this Agreement and the Notes and the
Borrower and each Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. The Borrower agrees that if amounts
outstanding under this Agreement and the Notes are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, to the extent permitted by law, each Participant shall be
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement and any Note to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
this Agreement or any Note, provided that such Participant shall only be
entitled to such right of setoff if it shall have agreed in the agreement
pursuant to which it shall have acquired its participating interest to share
with the Lenders the proceeds thereof as provided in Section 9.10. The Borrower
also agrees that to the extent permitted by law each Participant shall be
entitled to the benefits of Sections 2.14, 2.15, 2.17 and 9.06 with respect to
its participation in the Commitments and the Loans outstanding from time to
time; provided, that no Participant shall be entitled to receive any greater
amount pursuant to such Sections than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to any
Affiliate of such Lender or to any Lender or any affiliate thereof, and, with
the consent of the Borrower and the Administrative Agent (which in each case
shall not be unreasonably withheld), to one or more additional banks or
financial institutions ("Purchasing Lenders") all or any part of its rights and
obligations under this Agreement and the Notes pursuant to an Assignment
Agreement, substantially in the form of Exhibit D (an "Assignment Agreement"),
executed by such Purchasing Lender, such transferor Lender (and, in the case of
a Purchasing Lender that is not then a Lender or an affiliate thereof, by the
Borrower and the Administrative Agent) and delivered to the Administrative Agent
for its acceptance and for recording in the Register. Upon such execution,
delivery, acceptance and recording, from and after the effective date of such
assignment determined pursuant to such Assignment Agreement, (x) the Purchasing
Lender thereunder shall be a party hereto and, to the
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extent provided in such Assignment Agreement, have the rights and obligations of
a Lender hereunder with a Commitment as set forth therein, and (y) the
transferor Lender thereunder shall, to the extent provided in such Assignment
Agreement, be released from its obligations (other than obligations, if any,
relating to confidentiality) under this Agreement (and, in the case of a
Assignment Agreement covering all or the remaining portion of a transferor
Lender's rights and obligations under this Agreement, such transferor Lender
shall cease to be a party hereto). Such Assignment Agreement shall be deemed to
amend this Agreement to the extent, and only to the extent, necessary to reflect
the addition of such Purchasing Lender and the resulting adjustment of
Commitment Percentages arising from the purchase by such Purchasing Lender of
all or a portion of the rights and obligations of such transferor Lender under
this Agreement and the Notes. On or prior to the effective date of such
Assignment Agreement, the Borrower, at its own expense, shall execute and
deliver to the Agent in exchange for the surrendered Note a new Note to the
order of such Purchasing Lender in an amount equal to the Commitment assumed by
it pursuant to such Assignment Agreement and, if the transferor Lender has
retained a Commitment hereunder, new Notes to the order of the transferor Lender
in an amount equal to the Commitment retained by it hereunder. Such new Notes
shall be dated the Closing Date and shall otherwise be in the form of the Notes
replaced thereby. The Notes surrendered by the transferor Lender shall be
returned by the Agent to such Borrower marked "canceled."
(d) The Agent shall maintain, a copy of each Assignment Agreement
delivered to it and a register (the "Register") for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Revolving Loans owing to, each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as the owner of the Loans recorded therein for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
and each Lender at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment Agreement executed by a
transferor Lender and Purchasing Lender (and, in the case of a Purchasing Lender
that is not then a Lender or an affiliate thereof, by the Borrower and the
Administrative Agent) together with payment to the Agent by the transferor
Lender (or, if so agreed by it, the Purchasing Lender) of a registration and
processing fee of $3,500, the Agent shall (i) promptly accept such Assignment
Agreement and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any Participant
or Purchasing Lender (each, a "Transferee") and any prospective Transferee any
and all financial information in such Lender's possession concerning the
Borrower and its affiliates which has been delivered to such Lender by or on
behalf of the Borrower pursuant to this Agreement or which has been delivered to
such Lender by or on behalf of the Borrower in connection with such Lender's
credit evaluation of the Borrower prior to becoming a party to this Agreement;
provided that such Transferee or prospective Transferee agrees, prior to
receiving any financial information to maintain the confidentiality of such
information in accordance with Section 9.14.
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(g) If, pursuant to this subsection any interest in this Agreement or
any Note is transferred to any Transferee which is organized under the laws of
any jurisdiction other than the United States or any state thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Lender (for
the benefit of the transferor Lender, the Agent and the Borrower) that under
applicable law and treaties no taxes will be required to be withheld by the
Agent, the Borrower or the transferor Lender with respect to any payments to be
made to such Transferee in respect of the Loans, (ii) to furnish to the
transferor Lender (and, in the case of any Purchasing Lender registered in the
Register, the Agent and the Borrower) either U.S. Internal Revenue Service Form
W-8BEN or W-8ECI (wherein such Transferee claims entitlement to complete
exemption from U.S. federal withholding tax on all interest payments hereunder)
and (iii) to agree (for the benefit of the transferor Lender, the Agent and the
Borrower) to provide the transferor Lender (and, in the case of any Purchasing
Lender registered in the Register, the Agent and the Borrower) a new Form W-8BEN
or W-8ECI upon the expiration or obsolescence of any previously delivered form
and comparable statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by such Transferee and to
comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
(h) Nothing set forth herein shall prohibit any Lender from pledging
or assigning any Note and its rights hereunder to any lender affiliated with the
Federal Reserve System in accordance with applicable law and the regulations of
the Board of Governors of the Federal Reserve System.
(i) The minimum amount that may be assigned or participated by any
Lender pursuant to this Section 9.04 is the lesser of (x) $5,000,000 and (y) all
of such Lender's rights and obligations under this Agreement and the Notes.
Section 9.05 Governing Law. This Agreement and the Note shall be
governed by, and construed in accordance with, the laws of the State of New
York.
Section 9.06 Costs and Expenses. 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
(excluding any present or future taxes, now or hereafter imposed, levied,
collected, withheld or assessed) in connection with the preparation, execution,
delivery, modification, amendment, administration and monitoring of the Loan
Documents and the other documents to be delivered thereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent, and of local counsel who may be retained by the Agent, with respect
thereto and with respect to advising the Lenders and the Agent as to their
rights and remedies under the Loan Documents. The Borrower further agrees to pay
on demand all costs and expenses of the Agent and the Lenders, if any
(including, without limitation, reasonable fees and expenses of counsel to the
Agent and of counsel to the several Lenders), in connection with the enforcement
(whether through negotiations, workout, legal proceedings or otherwise) of, or
preservation of rights under, the Loan 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.
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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, EACH 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, each 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, each Lender
and the Agent have already relied on the waiver in entering into this Agreement
and that each will continue to rely on the waiver in their related future
dealings. The Borrower, each 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. 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 Loan 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 any
Lender or the Agent may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan 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 Loan 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 Adjustments; Set-off. (a) If any Lender (a "benefited
Lender") shall at any time receive any payment of a or part of its Loans, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
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respect of such other Lender's Loans, or interest thereon, such benefited Lender
shall purchase for cash from the other Lenders such portion of each such other
Lender's Loans, or shall provide such other Lenders with the benefits of any
such collateral or the proceeds thereof, as shall be necessary to cause such
benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Borrower agrees that each Lender so purchasing a portion of another Lender's
Loan may exercise all rights of payment (including, without limitation, rights
of set-off) with respect to such portion as fully as if such Lender were the
direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, exercisable following the acceleration of
the obligations of the Borrower owing in connection with this Agreement, without
prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, to set-off and appropriate
and apply against any such obligations any and all deposits (general or special,
time or demand, provisional or final), in any currency, and any other credits,
Indebtedness or claims, in any currency, in each case whether direct or indirect
absolute or contingent, matured or unmatured, at any time held or owing by such
Lender or any branch or agency thereof to or for the credit or the account of
the Borrower. Each Lender agrees promptly to notify the Borrower and each Agent
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
Section 9.11 Survival. The Borrower's obligations pursuant to Sections
2.14, 2.15, 2.17, 8.01 and 9.06 shall survive the repayment of the Loans and the
termination of the Commitment.
Section 9.12 Entire Agreement. This Agreement, together with the other
Loan 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 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. The Agent and each Lender agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its 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, (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
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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, (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 or any Lender on a
nonconfidential basis from a source other than the Borrower, the Agent, or any
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 any Lender on a
nonconfidential 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
Notes, nor shall resort be had to their personal property for the satisfaction
of any obligation or claim hereunder or in connection with any Loan Document.
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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.: (▇▇▇) ▇▇▇-▇▇▇▇
DEUTSCHE BANK, AG, NEW YORK BRANCH,
as Lender
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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52
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
By_________________________________
Name:
Title:
By_________________________________
Name:
Title:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
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53
EXHIBIT A
FORM OF REVOLVING LOAN NOTE
U.S. $________________ Dated: December ___, 1999
FOR VALUE RECEIVED, the undersigned, NUVEEN SENIOR INCOME FUND, a
Massachusetts business trust (the "Borrower"), hereby promises to pay to the
order of _________________________ (the "Lender"), for the Lender's account the
amount first stated above or, if less, the aggregate unpaid principal amount of
all Loans (as defined below) made by the Lender to the Borrower pursuant to the
Credit Agreement (as defined below) on the Termination Date (as defined in the
Credit Agreement).
The Borrower promises to pay interest on the unpaid principal amount
of the Loans from the date of the initial Loan 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 ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ in immediately available funds.
The holder of this Note is authorized to record the date and amount of each
Revolving Loan made pursuant to subsection 2.01 of the Credit Agreement, its
character as a Base Rate Loan or Eurodollar Loan, the date and amount of each
payment or prepayment of principal with respect thereto, the length of each
Interest Period with respect to the portion of such Revolving Loan made and/or
maintained as a Eurodollar Loan, the Eurodollar Rate with respect thereto and
each conversion made pursuant to subsection 2.06 of the Credit Agreement, on the
schedules annexed hereto and made a part hereof, or on a continuation thereof
which shall be attached hereto and made a part hereof, which recordation shall
constitute prima facie evidence of the accuracy of the information so recorded;
provided that failure by the Lender to make any such recordation on this Note
shall not affect the obligations of the Borrower under this Note or under the
Credit Agreement.
This Note is the Note referred to in, and is entitled to the benefits
of, the Credit Agreement dated as of December 14, 1999 (the "Credit Agreement";
the terms defined therein and not otherwise defined herein are being used herein
as therein defined) among the Borrower, the banks and other financial
institutions parties thereto and Deutsche Bank AG, New York Branch, as Agent.
The Credit Agreement, among other things, (i) provides for the making of Loans
(the "Loans") 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 Loans 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
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to pay when due the obligations of the Borrower) and also for prepayments of
principal of the Loans prior to the maturity hereof upon the terms and
conditions therein specified.
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 diligence,
presentment, protest, demand and notice of every kind.
NUVEEN SENIOR INCOME FUND
By_________________________________
Name:
Title:
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55
SCHEDULE A
to Form of Revolving Loan Note
LOANS, CONVERSIONS AND
PAYMENTS OF EURODOLLAR LOANS
Amount of Amount of
Base Rate Eurodollar
Loans Interest Period Loans Unpaid
Converted and Eurodollar Converted Principal
into Rate with into Balance of
Amount Eurodollar Respect Base Rate Eurodollar Notation
Date of Loan Loans Thereto Loans Loans Made by
---- ------- ----- ------- ----- ----- -------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
--------- --------- ----------- --------------- ----------- ---------- --------
56
EXHIBIT B
FORM OF BORROWER 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 December 14, 1999, by
and among Nuveen Senior Income Fund, as Borrower, the banks and other financial
institutions from time to time parties thereto (each a "Lender" and
collectively, the "Lenders") 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] [quarter] [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 Loan Documents to be observed,
performed or satisfied by it.
[ADD ADDITIONAL INFORMATION AS TO DEFAULTS, IF ANY]
57
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed as of the ___ day of _______, ____.
NUVEEN SENIOR INCOME FUND
By:___________________________________
Name:
Title:
58
EXHIBIT C
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 2.03 of
the Credit Agreement, dated as of December 14, 1999 (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"), the banks and other financial institutions from time to time
parties thereto (each a lender and collectively, the "Lenders"), and Deutsche
Bank AG, New York Branch, as administrative agent (in such capacity, the
"Agent"). All capitalized terms used but not defined herein shall have the
meanings set forth in the Credit Agreement.
Pursuant to Section 2.03 of the Credit Agreement, the undersigned
hereby gives you irrevocable notice that the undersigned hereby requests a Loan
under the Credit Agreement, and in that connection sets forth below the
information relating to such Loan (the "Proposed Loan") as required by Section
2.03 of the Credit Agreement:
(i) The aggregate principal amount of the Proposed Loan is $______.(1)
(ii) The Proposed Loan is to be a [Eurodollar Loan][Base Rate Loan].
(iii) The [Working Day/ Business Day](2) of the Proposed Loan is
[Date].(3)
------------------------
(1) The desired amount must be at least $5,000,000 and must be in integral
multiples of $1,000,000.
(2) The Borrower may borrow under the Commitments during the Commitment Period
on any Working Day if the borrowing is a Eurodollar Loan or on any Business
Day if the borrowing is a Base Rate Loan.
(3) A written request for a Loan in the form of this Exhibit C shall be
received by the Agent no later than 12:00 P.M., New York Time, (a) three
Working Days prior to the requested Borrowing Date, if all or any part of
any such requested Revolving Loans are to be initially Eurodollar Loans or
(b) one Business Day prior to the requested Borrowing Date in all other
cases.
59
(iii) The Interest Period for the Proposed Loan 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 Loan:
A. the representations and warranties contained in Article IV of the
Credit Agreement and in the Loan Documents are and will be true and correct in
all material respects, both before and after giving effect to the Proposed Loan
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 Loan or from the application of the proceeds
thereof; and
C. after giving effect to the Loan, 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 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 2.03 of
the Credit Agreement, each of the delivery of this Borrowing Request and the
acceptance by the undersigned of the proceeds of the Loans requested hereby
constitute a representation and warranty by the undersigned that, on the date of
such Loan, 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
Loan, have been satisfied.
The undersigned agrees that if, prior to the time of the Proposed
Loan, 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 Loan, each matter certified to herein shall be deemed
once again to be certified as true and correct at the date of the Proposed Loan
as if then made.
NUVEEN SENIOR INCOME FUND
By:___________________________________
Name:
Title:
60
EXHIBIT D
FORM OF ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of the date set forth in Item I of Schedule
I hereto, among the Transferor Lender set forth in Item 2 of Schedule I hereto
(the "Transferor Lender"), each Purchasing Lender set forth in Item 3 of
Schedule I hereto (each, a "Purchasing Lender") and Deutsche Bank AG, New York
Branch, as Agent.
WITNESSETH:
WHEREAS, this Assignment Agreement is being executed and delivered in
accordance with subsection 9.04 of the Credit Agreement dated as of December 14,
1999 among Nuveen Senior Income Fund, a Massachusetts business trust (the
"Borrower"), the Transferor Lender, the other Lenders and the Agent (as from
time to time amended, supplemented or otherwise modified in accordance with the
terms thereof, the "Credit Agreement": terms defined therein being used herein
as therein defined);
WHEREAS, each Purchasing Lender (if it is not already a Lender party to the
Credit Agreement) wishes to become a Lender party to the Credit Agreement; and
WHEREAS, the Transferor Lender is selling and assigning to each Purchasing
Lender, rights, obligations and commitments under the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon receipt by the Agent of five (5) counterparts of this Assignment
Agreement, to each of which is attached a fully completed Schedule I and
Schedule II, and each of which has been executed by the Transferor Lender, each
Purchasing Lender (and any other person required by the Credit Agreement to
execute this Assignment Agreement), the Agent will transmit to the Borrower, the
Transferor Lender and each Purchasing Lender an Assignment Effective Notice,
substantially in the form of Schedule III to this Assignment Agreement (an
"Assignment Effective Notice"). Such Assignment Effective Notice shall set
forth, inter alia, the date on which the assignment effected by this Assignment
Agreement shall become effective (the "Assignment Effective Dates"), which date
shall be the fifth Business Day following the date of such Assignment Effective
Notice. From and after the Assignment Effective Date each Purchasing Lender
shall be a Lender party to the Credit Agreement for all purposes thereof.
2. At or before 12:00 Noon, local time of the Tranferor Lender, on the
Assignment Effective Date, each Purchasing Lender shall pay to the Transferor
Lender, in immediately available funds, an amount equal to the purchase price,
as agreed between the Transferor Lender and such Purchasing Lender (the
"Purchase Price"), of the portion being purchased by such Purchasing Lender
(such Purchasing Lender's "Purchased Percentage") of the outstanding
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Revolving Loans and other amounts owing to the Transferor Lender under the
Credit Agreement and the Transferor Lender's Revolving Notes. Effective upon
receipt by the Transferor Lender of the Purchase Price from a Purchasing Lender,
the Transferor Lender hereby irrevocably sells, assigns and transfers to such
Purchasing Lender, without recourse, representation or warranty, and each
Purchasing Lender hereby irrevocably purchases, takes and assumes from the
Transferor Lender, such Purchasing Lenders Purchased Percentage of the
Commitments and the presently outstanding Revolving Loans and other amounts
owing to the Transferor Lender's under the Credit Agreement and the Transferor
Lender's Revolving Notes together with all instruments, documents and collateral
security, if any, pertaining thereto.
3. The Transferor Lender has made arrangements with each Purchasing Lender
with respect to (i) the portion, if any, to be paid, and the date or dates for
payment, by the Transferor Lender to such Purchasing Lender of any fees
heretofore received by the Transferor Lender pursuant to the Credit Agreement
prior to the Assignment Effective Date and (ii) the portion, if any, to be paid,
and the date or dates for payment, by such Purchasing Lender to the Transferor
Lender of fees or interest received by such Purchasing Lender pursuant to the
Credit Agreement from and after the Assignment Effective Date.
4. (a) All principal payments to be made with respect to the Revolving
Loans that would otherwise be payable from and after the Assignment Effective
Date to or for the account of the Transferor Lender pursuant to the Credit
Agreement and the Revolving Notes shall, instead, be payable to or for the
account of the Transferor Lender and the Purchasing Lenders, as the case may be,
in accordance with their respective interests as reflected in this Assignment
Agreement.
(b) All interest, fees and other amounts that would otherwise accrue for
the account of the Transferor Lender from and after the Assignment Effective
Date pursuant to the Credit Agreement and the Notes shall, instead, accrue for
the account of, and be payable to, the Transferor Lender and the Purchasing
Lenders, as the case may be, in accordance with their respective interests as
reflected in this Assignment Agreement. In the event that any amount of
interest, fees or other amounts accruing prior to the Assignment Effective Date
was included in the Purchase Price paid by any Purchasing Lender, the Transferor
Lender and each Purchasing Lender will make appropriate arrangements for payment
by the Transferor Lender to such Purchasing Lender of such amount upon receipt
thereof from any of the Borrowers.
5. On or prior to the Assignment Effective Date, the Transferor Lender will
deliver to the Agent its Notes. On or prior to the Assignment Effective Date,
the Borrower will deliver or cause to be delivered to the Agent Revolving Notes
for each Purchasing Lender and the Transferor Lender, in each case in principal
amounts reflecting, in accordance with the Credit Agreement, their Commitments
(as adjusted pursuant to this Assignment Agreement). As provided in subsection
9.04(c) of the Credit Agreement, each such new Note shall be dated the Closing
Date. Promptly after the Assignment Effective Date, the Agent will send to each
of the Transferor Lender and the Purchasing Lenders its new Revolving Notes and
will send to the Borrower the superseded Notes of the Transferor Lender, marked
"Canceled".
6. Concurrently with the execution and delivery hereof, the Transferor
Lender will provide to each Purchasing Lender (if it is not already a Lender
party to the Credit Agreement)
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conformed copies of all documents delivered to such Transferor Lender on the
Closing Date in satisfaction of the conditions precedent set forth in the Credit
Agreement referred to in the first recital hereto.
7. Each of the parties to this Assignment Agreement agrees that at any
time and from time to time upon the written request of any other party, it will
execute and deliver such further documents and do such further acts and things
as such other party may reasonably request in order to effect the purposes of
this Assignment Agreement.
8. By executing and delivering this Assignment Agreement, the Transferor
Lender and each Purchasing Lender confirm to and agree with each other, the
Agent and the Lenders as follows: (i) other than the representation and warranty
that it is the legal and beneficial owner of the interest being assigned hereby
free and clear of any adverse claim, the Transferor Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the Notes or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, the
Notes, or any other instrument or documents furnished pursuant thereto, (ii) the
Transferor Lender makes no representation or warranty and assumes no
responsibility, with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement, the Notes or any other instrument or document furnished
pursuant hereto; (iii) each Purchasing Lender confirms that it has received a
copy of the Credit Agreement, together with copies of the financial statements
referred to in subsection 5.01 of the Credit Agreement and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement; (iv) each Purchasing Lender
will independently and without reliance upon the Agent, the Transferor Lender or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement and the other Loan Documents; (v)
each Purchasing Lender appoints and authorizes the Agent to take such action as
the Agent on its behalf and to exercise such powers under the Credit Agreement
and the other Loan Documents as are delegated to the Agent by the terms thereof
together with such powers as are reasonably incidental thereto, all in
accordance with Article VII of the Credit Agreement; and (vi) each Purchasing
Lender agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement and the other Loan
Documents are required to be performed by it as a Lender.
9. Each party hereto represents and warrants to and agrees with the Agent
that it is aware of and will comply with the provision of subsection 9.04(g) of
the Credit Agreement.
10. Schedule II hereto sets forth the revised Commitments and Commitment
Percentages of the Transferor Lender and each Purchasing Lender as well as
administrative information with respect to each Purchasing Lender.
11. THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective duly authorized officers on
Schedule I hereto as of the date set forth in Item I of Schedule I hereto.
_____________________________________, as a
Purchasing Lender
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
_____________________________________, as a
Transferor Lender
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
CONSENTED TO AND ACKNOWLEDGED:
NUVEEN SENIOR INCOME FUND
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Agent
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
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SCHEDULE I
TO ASSIGNMENT AGREEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR ASSIGNMENT AGREEMENT
Re: Credit Agreement dated as of December ___, 1999, with
Nuveen Senior Income Fund
Item 1 (Date of Assignment Agreement): [Insert date of Assignment Agreement]
Item 2 (Transferor Lender): [Insert name of Transferor Lender]
Item 3 (Purchasing Lender[s]): [Insert name of Transferor Lender]
Item 4 (Signatures of parties to Assignment
Agreement):
_____________________________________, as a
Transferor Lender
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
_____________________________________, as a
Purchasing Lender
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
65
SCHEDULE II
TO ASSIGNMENT AGREEMENT
ADDRESSES FOR NOTICES
AND COMMITMENT AMOUNTS
[Name of Transferor Lender] Revised Commitment $_____________
Amount:
Revised Commitment
Percentage:
[Name of Purchasing Lender] New Commitment $_____________
Amount:
Address for Notices: New Commitment $_____________
[Address] Percentage:
Attention: _______________
Telex: ___________________
Answer back: _____________
Telephone: _______________
Telecopier: ______________
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SCHEDULE III
TO ASSIGNMENT AGREEMENT
[FORM OF ASSIGNMENT EFFECTIVE NOTICE]
To: [NUVEEN SENIOR INCOME FUND]
[TRANSFEROR LENDER]
[PURCHASING LENDER]
The undersigned, as agent (the "Agent") under the Credit Agreement dated as
of December___, 1999 among Nuveen Senior Income Fund, the banks and other
financial institutions from time to time parties thereto, and Deutsche Bank AG,
New York Branch, as Agent, acknowledges receipt of five (5) executed
counterparts of a completed Assignment Agreement, as described in Schedule I
hereto. [Note: attach copy of Schedule I from Assignment Agreement.] Terms
defined in such Assignment Agreement are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the
Assignment Agreement Effective Date will be ______________________ [Insert fifth
business day following date of Assignment Effective Notice].
2. Pursuant to such Assignment Agreement, the Transferor Bank is required
to deliver to the Agent on or before the Assignment Effective Date its Notes.
3. Pursuant to such Assignment Agreement, the Borrower is required to
deliver to the Agent on or before the Assignment Effective Date the following
Notes, each dated ______________________ [Insert Closing Date].
[Describe each new Assignment Note for Transferor Lender and Purchasing
Lender as to principal amount, payee and payor.]
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4. Pursuant to such Assignment Agreement each Purchasing Lender is required
to pay its Purchase Price to the Transferor Lender at or before 12:00 Noon on
the Assignment Effective Date in immediately available funds.
Very truly yours,
Deutsche Bank AG, New York Branch
as Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
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EXHIBIT E
FORM OF OPINION OF COUNSEL TO THE BORROWER
December __, 1999
The Persons on the Attached Schedule I
Re: Credit Agreement dated as of December 14, 1999,
among Nuveen Senior Income Fund, as Borrower,
the Lenders party thereto and Deutsche Bank AG,
New York Branch, as Agent, Syndication Agent and Arranger
--------------------------------------------------------------
Dear Ladies and Gentlemen:
We have acted as special counsel to Nuveen Senior Income Fund, a
Massachusets business trust (the "Borrower"), and its affiliates in connection
with the transactions contemplated by the Credit Agreement (the "Credit
Agreement"), dated as of December 14, 1999, among the Borrower, the Lenders
party thereto and Deutsche Bank AG, New York Branch, as Agent, Syndication Agent
and Arranger. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement.
In rendering the opinions set forth herein, we have examined and
relied on originals or copies, certified or otherwise identified to our
satisfaction, of the following:
(p) the Credit Agreement;
(q) the Note;
(c) certified copy of the Declaration of Trust of the Borrower, dated
_____, ___, (the "Declaration of Trust").
The documents referred to in paragraphs (a) and (b) above are
hereinafter referred to as the "Transaction Documents."
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such copies. As to any facts material to this
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opinion which we did not independently establish or verify, we have relied upon
statements and representations of the Borrower and its officers and other
representatives and of public officials.
With your approval, we have further assumed, without independent
investigation:
(1) that all parties to the Credit Agreement, other than the Borrower,
are duly organized and in good standing in the jurisdictions in which they were
organized;
(2) that all parties to the Credit Agreement, other than the Borrower,
are duly qualified to transact business as foreign corporations or other
entities and are in good standing in the jurisdictions in which they transact
business or are otherwise required to be so qualified;
(3) the due authorization of the Credit Agreement by all parties
thereto, other than the Borrower;
(4) the due execution and delivery of the Credit Agreement by all
parties thereto, other than the Borrower;
(5) the full legal power and authority of all parties to the Credit
Agreement, other than the Borrower, to execute, deliver and perform their
obligations thereunder;
(6) the legality, validity, binding effect and enforceability of the
Credit Agreement against all the parties thereto, other than the Borrower; and
(7) the legal capacity of all natural persons.
Based upon the foregoing and subject to the limitations,
qualification, exceptions and assumptions set forth herein, we are of the
opinion that:
1. The Borrower is duly organized and validly subsisting as a
Massachusetts Business Trust and has the power and authority to own its property
and assets and to transact the business in which it is currently engaged.
2. The execution and delivery of each of the Transaction Documents and
the consummation by the Borrower of the transactions contemplated thereby are
within the powers set forth in the Declaration of Trust and have been duly
authorized by all requisite action on the part of the Borrower. Each of the
Transaction Documents has been duly executed and delivered by the Borrower.
3. Each of the Transaction Documents constitutes the valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with
its terms under the laws of the State of New York except (i) as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law) and (ii) that
we express no opinion as to the enforceability of any rights to indemnification
which are violative of the public policy underlying any law, rule or regulation.
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4. The execution and delivery by the Borrower of each of the
Transaction Documents and the performance by the Borrower of its obligations
under each of the Transaction Documents, each in accordance with its terms, do
not (i) conflict with the Declaration of Trust or By-laws of the Borrower, (ii)
constitute a violation of, or a default under, any indenture, contract,
agreement, note or instrument to which the Borrower is a party or by which the
Borrower or by which it or any of its property is bound or (iii) cause the
creation of any security interest or lien upon any of the property of the
Borrower pursuant to any indenture, contract, agreement, note or instrument to
which the Borrower is a party or by which the Borrower or by which it or any of
its property is bound.
5. Neither the execution, delivery or performance by the Borrower of
the Transaction Documents nor the compliance by the Borrower with the terms and
provisions thereof will contravene, violate or constitute a default under any
provision of any Federal, New York State or Commonwealth of Massachusetts law,
rule or regulation or any order, writ, judgment or decree of which we are aware
of any Federal, New York State or Commonwealth of Massachusetts court or
governmental authority binding upon the Borrower.
6. The execution, delivery and performance by the Borrower of each of
the Transaction Documents and the consummation by the Borrower of the applicable
transactions provided for therein, do not and will not require any
authorization, consent, approval, license or other action by or in respect of,
or notice to or filing with, any Federal, New York State or Commonwealth of
Massachusetts governmental, legislative, judicial, administrative or regulatory
body, agency or official (each a "Governmental Approval") that has not been
obtained or taken and is not in full force and effect.
7. The Borrower is a registered closed-end investment company under
the Investment Company Act of 1940.
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We do not purport to be experts on the law of any jurisdiction other
than, and the opinions expressed above are limited to questions arising under,
the Federal law of the United States, the law of the State of New York and the
law of the Commonwealth of Massachusetts.
This opinion is for the sole benefit of the named addressees and for
the benefit of their successors and permitted assigns and may not be relied upon
by any other person without our prior written consent.
Very truly yours,
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SCHEDULE I
COMMITMENTS
Lender Commitment
------ ----------
Deutsche Bank AG, $150,000,000
New York Branch
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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SCHEDULE II
LIST OF INVESTMENT ADVISORY AGREEMENT(S)
None.
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SCHEDULE III
LIST OF CUSTODIAN CONTRACT(S)
1. Custody and Fund Accounting Services Agreement, dated as of October
26, 1999, by and among the Nuveen Senior Income Fund, the Chase Bank
of Texas, National Association, and the Chase Global Funds Services
Company.
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SCHEDULE IV
LIST OF REGISTRAR, TRANSFER AGENCY AND SERVICES AGREEMENT(S)
1. Closed-End Mutual Funds Services Agreement for Transfer Agency
Services, dated as of October 26, 1999 by and between the Nuveen
Senior Income Fund and the Chase Manhattan Bank.
2. Management Agreement, dated as of October 19, 1999, by and between the
Nuveen Senior Income Fund and the Nuveen Senior Loan Asset Management
Inc.